# Vice-Chancellor, Kanpur & Anr v. Dr. Lallu Singh & Anr

- **Citation:** (2023) 1 ILRA 455
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-01
- **Case number:** Special Appeal No. 671 of 2022
- **Bench:** Manoj Misra, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vice-chancellor-kanpur-anr-v-dr-lallu-singh-anr-49155
- **Pages:** 5

## Headnote

A. Service Law - Constitution of India -
Article 14 - Right of equality -Intelligible
differentia - Pay parity - Junior was given
higher pay, though discharging same duty
- Effect - Junior obtained Ph.D. degree
while in service, whereas the petitioner
obtained the same before entry in service
-
Reason,
how
far
justifiable
for
discrimination - Legal principle of pay
parity laid down - Justifiable grounds,
when
the
senior
cannot
invoke the
equality
doctrine,
explained
-
Held,
ordinarily, grant of higher pay to a junior
would ex facie be arbitrary unless there is
an intelligible differentia justifying it. No
doubt, if there are justifiable grounds for
doing so, the seniors cannot invoke the
equality
doctrine.
Justifiable
grounds
could be such as (i) when pay fixation is
done
under
valid
statutory
rules/
executive instructions; (ii) when persons
recruited from different sources are given
pay protection; (iii) when a senior is
stopped at efficiency bar; (iv) when
advance
increments
are
given
for
experience/ passing a test / acquiring
456 INDIAN LAW REPORTS ALLAHABAD SERIES
higher qualifications or as incentive for
efficiency. (Para 8 and 9)
B. Procedural law - Constitution of India -
Article 226 - Writ - Non-joinder of
necessary party - Though the University
was made party, the St. and ICAR was not
made party in writ petition - Effect - No
objection regarding non-impleadment of
St. was raised before the writ court -
Objection for the first time in appeal, how
far permissible - Held, the purpose of
impleading a person as a party to a
proceeding is to ensure that that person
gets due opportunity to put its case in the
proceeding. In the instant case, the ViceChancellor of the University, who is the
principal officer of the University and is
the best person to put forth the case of
the University was party to the writ
proceeding - High Court rejected the
objection
holding
it
hyper-technical
ground. (Para 11)
Special Appeal dismissed. (E-1)
List of Cases cited:

## Text

1 All. Vice-Chancellor, Kanpur & Anr. Vs. Dr. Lallu Singh & Anr.
455
is only after the representation was decided
that she had joined the college, without
specifically giving up her right to challenge
the order, because if she had not joined, her
candidature would have been cancelled. In
these circumstances, where the petitioner
had been litigating for her cause, it cannot
be said that she had waived her right to
challenge the placement.

28. We also do not accept the
submission of the learned counsel for the
respondent no.5 that all the candidates were
required to be impleaded in the writ
proceedings. The reason is that the writ
petitioner was seeking placement in the
college where the respondent no.5 had been
appointed though being lower in the order
of merit than the petitioner. She was not
seeking relief against any other person. In
such circumstances, it was not required of
her to implead all the selected candidates.
Otherwise
also,
once
the
allocation/
placement is questioned and adjudicated
upon, it is for the Director to adjust the
allocation of colleges as per law.

29. For all the reasons recorded
above, we are unable to agree with the view
taken by the learned Single Judge. The
judgment and order of the learned Single
Judge dated 20.06.2022 is hereby set aside.
The writ petition of the petitioner is
allowed. The order of the Director dated
20.12.2021 is set aside and a direction is
issued to the Director to pass a fresh order
in respect of placement of the petitioner, as
represented by her vide representation
dated 16.12.2021, in accordance with the
law, preferably, within a period of four
weeks from the date a copy of this order is
placed in his office.

30. The appeal is allowed as above.
----------
(2023) 1 ILRA 455
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.12.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Special Appeal No. 671 of 2022
connected with
Special Appeal No.666 of 2022

Vice-Chancellor, Kanpur & Anr.
 ...Appellants
Versus
Dr. Lallu Singh & Anr. ...Respondents

Counsel for the Appellants:
Sri Rakesh Kumar

Counsel for the Respondents:
Sri Siddhartha Srivastava

A. Service Law - Constitution of India -
Article 14 - Right of equality -Intelligible
differentia - Pay parity - Junior was given
higher pay, though discharging same duty
- Effect - Junior obtained Ph.D. degree
while in service, whereas the petitioner
obtained the same before entry in service
-
Reason,
how
far
justifiable
for
discrimination - Legal principle of pay
parity laid down - Justifiable grounds,
when
the
senior
cannot
invoke the
equality
doctrine,
explained
-
Held,
ordinarily, grant of higher pay to a junior
would ex facie be arbitrary unless there is
an intelligible differentia justifying it. No
doubt, if there are justifiable grounds for
doing so, the seniors cannot invoke the
equality
doctrine.
Justifiable
grounds
could be such as (i) when pay fixation is
done
under
valid
statutory
rules/
executive instructions; (ii) when persons
recruited from different sources are given
pay protection; (iii) when a senior is
stopped at efficiency bar; (iv) when
advance
increments
are
given
for
experience/ passing a test / acquiring
456 INDIAN LAW REPORTS ALLAHABAD SERIES
higher qualifications or as incentive for
efficiency. (Para 8 and 9)
B. Procedural law - Constitution of India -
Article 226 - Writ - Non-joinder of
necessary party - Though the University
was made party, the St. and ICAR was not
made party in writ petition - Effect - No
objection regarding non-impleadment of
St. was raised before the writ court -
Objection for the first time in appeal, how
far permissible - Held, the purpose of
impleading a person as a party to a
proceeding is to ensure that that person
gets due opportunity to put its case in the
proceeding. In the instant case, the ViceChancellor of the University, who is the
principal officer of the University and is
the best person to put forth the case of
the University was party to the writ
proceeding - High Court rejected the
objection
holding
it
hyper-technical
ground. (Para 11)
Special Appeal dismissed. (E-1)
List of Cases cited:

1. St. of Andhra Pradesh & ors. Vs G. Sreenivasa
Rao& ors.; (1989) 2 SCC 290
2. Govt. of A.P. & ors. Vs Veera Raghavan;
(1999) 9 SCC 266
3. U.O.I. & anr. Vs R. Swaminathan & ors.;
(1997) 7 SCC 690
4. Calcutta Municipal Corp. & anr. Vs Sujit Baran
Mukherjee & ors.; (1997) 11 463
(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Vikas Budhwar, J.)

1. As these two appeals are against a
common judgment and order of the learned
Single Judge dated 20.9.2022 in Writ-A
No. 4194 of 2022, they are connected with
each other and, with the consent of learned
counsel for the parties, have been heard
together and are being decided by a
common judgment and order.

2. Writ-A No. 4194 of 2022 was filed
by Dr. Lallu Singh (the appellant in Special
Appeal No. 666 of 2022, who is also
respondent no.1 in Special Appeal No. 671
of 2022) for quashing the orders dated
13.03.2020 and 16.07.2021 of the Director,
Administration
&
Monitoring,
Chandrashekhar Azad Krishi & Prodyogik
Vishwavidyalay, Kanpur (for short the
University) rejecting the claim of the writ
petitioner (i.e. Dr. Lallu Singh) for stepping
up his pay as to make it at par with his
junior. The writ petitioner also prayed for a
direction upon the University Authorities to
step up the pay of the petitioner and make it
at par with that of his juniors with effect
from the date the juniors were given higher
pay and to pay the arrears with interest.

3. The petitioner claimed for a step up
in pay on the ground that by virtue of
clause IV (ii) (d) of Indian Council of
Agricultural Research (ICAR) circular
letter dated March 3, 1999 two advance
increments were to be awarded as and
when a teacher of University acquires a
Ph.D. Degree in his service career. On the
basis thereof, the pay of many teachers,
who obtained Ph.D degree during their
service period, though junior to the writ
petitioner, got raised and became higher
than that of the petitioner therefore, on
principle of pay parity, the writ petitioner
was entitled to step up in pay. The
University Authorities sought to justify
rejection of the claim on following
grounds: that the writ petitioner had entered
service with Ph.D. degree and got its
benefit as was available at that time for
such additional qualification; whereas, the
juniors with whom the writ petitioner
claimed pay parity got Ph.D. degree during
their service and, therefore, by virtue of
ICAR circular dated March 3, 1999 they
got
two
advance
increments
w.e.f.
1 All. Vice-Chancellor, Kanpur & Anr. Vs. Dr. Lallu Singh & Anr.
457
27.07.1998 in the scale revised w.e.f.
01.01.1996;
and
that,
the
ICAR
clarificatory circular, dated April 19, 2004,
prohibited a claim by a senior for step up in
his pay if, by such raise provided to his
junior, the pay of the junior becomes higher
than that of the senior.

4. What is undisputed is that the
persons junior to the writ petitioner who
were working on the same post were given
higher pay only because they obtained Ph.
D. degree during their service, which the
writ petitioner held since the time of entry
in service. It is also undisputed that the
increment awarded to writ petitioner's
junior was in light of ICAR circular letter
dated March 3, 1999 which provided
certain incentive for Ph.D./ M.Phil. The
relevant clause of the Circular dated March
3, 1999 issued by ICAR is clause IV(ii)(d),
which has been extracted below:

"A teacher will be eligible for two
advance increments as and when he
acquires Ph.D. degree in his service
career."

5. The above part of the 1999 ICAR
Circular was clarified by ICAR Circular
dated April 19, 2004 in terms below: -

Sl No.
Points of Doubt Clarifications
1
...
...
2
...
...
3
Whether
the
pay of seniors
can be stepped
up at par with
the juniors who
get more pay
as a result of
grant
of
4/2
advance
increments
The
pay
of
seniors
can
not be stepped
up if a junior
drawing more
pay
on
account
of
advance
increments for
acquiring
granted
for
qualifications
Ph.D.
Degree/M.Phil
Degrees.
...
...
...

6. The writ petitioner claimed that
since the post on which he and his junior
were working was same, the functions
attached to the post were same, both got
appointment through selection, the salary
difference was not because any of them
entered the cadre from a different stream,
or with pay protection, there was no
justification for the petitioner to be paid
less than his junior only because the
petitioner had obtained Ph.D. degree before
entering service whereas, the juniors
obtained after entering the service. In a
nutshell the claim of the petitioner was
based
on
the
fundamental
principle
enshrined in Article 14 of the Constitution
of India that there cannot be a class within
a class and the differentiation in pay
fixation has no rational basis.

7. The learned Single Judge after
going through the record and pleadings of
the parties took the view that the
clarificatory cicular of the ICAR dated
April 19,2004 is not to deprive the claim
for pay parity by such seniors who hold
Ph.D. degree/ M.Phil degree. Rather, it is to
clarify that the senior would not have a
right to claim pay parity if the junior gets
the raise in pay on account of acquiring
higher qualification.

8. Before we proceed further, it would
be useful to notice legal principles
governing pay parity. It is well settled that,
ordinarily, grant of higher pay to a junior
would ex facie be arbitrary unless there is
an intelligible differentia justifying it. No
doubt, if there are justifiable grounds for
doing so, the seniors cannot invoke the
458 INDIAN LAW REPORTS ALLAHABAD SERIES
equality doctrine. Justifiable grounds could
be such as (i) when pay fixation is done
under valid statutory rules/ executive
instructions; (ii) when persons recruited
from different sources are given pay
protection; (iii) when a senior is stopped at
efficiency
bar;
(iv)
when
advance
increments are given for experience/
passing
a
test
/
acquiring
higher
qualifications or as incentive for efficiency
(vide State of Andhra Pradesh and
others v. G. Sreenivasa Rao and others,
(1989) 2 SCC 290, reiterated in Govt. of
A.P. & Ors. V. Veera Raghavan, (1999) 9
SCC 266); (v) where higher pay received
by a junior is on account of his earlier
officiation in the higher post because of
local officiating promotion (vide Union of
India & Anr. v. R. Swaminathan & ors.,
(1997)
7
SCC
690).
In
Calcutta
Municipal Corporation & Anr. v. Sujit
Baran Mukherjee & Ors., (1997) 11 463,
the Supreme Court, in the context of
stepping up pay of senior to match that of
the junior, observed when all of them
discharge the same duties and are under the
same responsibility and not in different
circumstances, the stepping up principle
would apply.

9. In the instant case, there is no
dispute that juniors to the writ petitioner
were discharging the same duties and
similarly circumstanced yet, admitted to
higher pay only because they obtained
Ph.D degree while in service whereas the
writ petitioner held Ph. D. degree since
before entry in service. This anomaly
according to the learned single Judge was
unjustified and discriminatory as there
existed no intelligible differentia between
the two. In our view, the learned single
Judge is justified in taking the above view,
because, a person who, in terms of
qualifications, holds higher qualification
from the very beginning i.e. since the time
of entry in service cannot be put at a
disadvantageous position qua the person
who comes at par with him later. Nothing is
shown either in the counter affidavit or in
the order impugned in the writ petition that
the junior drawing higher pay came from a
different stream with pay protection or was
discharging different duties or additional
functions or had passed a test or was given
increments out of additional experience,
etc. Only ground taken is the ICAR circular
dated March 3, 1999 and clarificatory
circular dated April 19, 2004. In so far as
1999 circular is concerned, it provides that
a teacher will be eligible for two advance
increments as and when he acquires Ph.D.
degree in his service career. This does not
say that a teacher who is already Ph.D. is
not entitled to the benefit. In so far as the
clarificatory circular dated April 19, 2004
is concerned, in our view, it would bar a
claim of such a senior who does not have
Ph.D. degree but not of one who holds
Ph.D degree. For the reasons above, we are
in agreement with the view taken by the
learned single Judge.

10. At this stage, Sri Rakesh Kumar,
learned
counsel
for
the
University,
submitted that the University derives its
fund from the State Government as well as
from
ICAR,
but
neither
the
State
Government nor the ICAR is a party in the
writ petition therefore, the writ petition was
liable to be dismissed for non-joinder of
necessary parties. It has been submitted that
even the University was not impleaded as
opposite party. Only, the Vice-Chancellor
of the University was impleaded as a party.
For this reason alone, the petition was
liable to be dismissed.

11. The aforesaid submission is
hyper-technical. Had it been raised before
1 All. The Managing Director, Pradeshik Cooperative Dairy Federation Ltd. & Ors. Vs.
 Virendra Kumar Srivastava & Ors.
459
the learned single Judge either in the
counter affidavit or orally, it might have
reflected in the impugned judgment and
order. The counter affidavit filed by the
opposite parties in the writ proceedings is
on record. A perusal thereof does not
reflect that any such ground was taken. Had
it been raised, the defect could have been
cured by seeking impleadment of proper
parties. Otherwise also, the purpose of
impleading a person as a party to a
proceeding is to ensure that that person gets
due opportunity to put its case in the
proceeding. In the instant case, the ViceChancellor of the University, who is the
principal officer of the University and is the
best person to put forth the case of the
University was party to the writ proceeding
and it was his decision which was
communicated to the writ petitioner.
Notably, he as well as the other officer of
the University represented the University
and a counter affidavit was also filed
putting forth the stand of the University. In
such circumstances, we do not find a good
reason to set aside the order of the learned
Single Judge on that technical ground.

12. In so far as non-impleadment of the
State
Government
and
the
ICAR
is
concerned, the writ petitioner was employed
by the University and his salary was paid by
the University. Wherefrom the University
sources its fund is not the concern of the
petitioner. In such circumstances, we do not
find any justification to set aside the order of
the learned Single Judge on that ground.

13. At this stage, Sri Siddhartha
Srivastava, who appears for the writ
petitioner (Dr. Lallu Singh), presses his
Special Appeal No. 666 of 2022 by
submitting that the learned Single Judge
should have awarded interest on the arrears
payable on account of step up in the pay
directed by the learned Single Judge.

14. We notice from the order of the
learned Single Judge that he has directed step
up in the pay of the writ petitioner with
retrospective effect i.e. from the date when
Dr. Hargyan Prakash, a junior to the writ
petitioner, was first paid higher pay than the
petitioner. From the submissions made at the
Bar, we could assess that Dr. Hargyan
Prakash was provided pay higher than what
was paid to the writ petitioner from
sometimes in the year 2007, may be from a
back date. Although it is stated that the writ
petitioner had been representing his cause
since 2011 but the representation which was
pressed was made in the year 2017. No
doubt, since then the petitioner had been
diligent in pursuing his claim but had been
lethargic in pursuing his claim earlier. We,
therefore, deny the prayer of the petitioner for
interest on the dues from the back date.

15. In light of the discussion above,
both the appeals fail and are dismissed. The
judgment and order of the learned Single
Judge is affirmed.
----------
(2023) 1 ILRA 459
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal No. 781 of 2011

The
Managing
Director,
Pradeshik
Cooperative Dairy Federation Ltd. & Ors.
 ...Appellants
Versus
Virendra Kumar Srivastava & Ors.
 ...Respondents