ORDER
Tirath S. Thakur, J.
1. Common questions of law have brought in these Writ Petitions together for disposal of this common judgment. The questions primarily pertain to the validity of para 13 of Government Order No. ED:88, Bangalore dated 30.3.1990, and the directions issued by the Respondents in relation thereto. The controversy arises in the back drop of the following facts.
2. The petitioners are all employees of Karnataka Liberal Education Society, which is running a large number of 1st grade Colleges in the State of Karnataka and falling under the jurisdiction of the Directorate of Collegiate Education. They were initially appointed as lecturers in different subjects against vacancies available in different institutions run and managed by the Society. In the absence of any statutory rules on the subject the conditions of service including the method of recruitment and promotion of such lecturers was governed by the terms of Government Order No. ED 146-UPC 79, Bangalore dated the 3rd of October, 1981 and the Annexure thereto; according to which 50% of vacancies in the next higher cadre of Readers were to be filled up by Direct recruitment while the remaining 50% were to go to promotees. The petitioners claim to have been appointed as Readers in their respective subjects against the direct recruitment quota with effect from the 29th of June, 1987. According to the rules Readers were eligible for promotion to the next higher post of Professors on the basis of merit and the combined seniority list of the cadre.
3. The fourth plan U.G.C. Scales of pay were extended to teachers in the Universities and the teaching staff of the Department of Collegiate Education as well as to those working in the Aided Colleges. Since however the State Scales of pay revised with effect from 1.1.1970 following in recommendations of the Tukol Commission were more beneficial to the College teachers most of them had opted to continue in the State pay-scales. The U.G.C. scales were in the meantime revised upwards following the recommendations of Prof. D.C. Mehrotra Committee with effect from 1.1.1986. In the wake of the said revision, the Central Government offered to assist the State Government in adopting and implementing the scheme of U.G.C. Pay Scales subject to certain conditions as to the extent of financial assistance to be extended as also the date upto which it would be extended. One of the important conditions for the grant of Central assistance was that the State Government shall implement the scheme of Revision of pay together to the same as a Composite Scheme.
4. Representations were received by the State Government from Karnataka Government Collegiate Education Teachers Association and the Federation of the University College Teachers Association for extending the benefit of Revised U.G.C. Scale of Pay with effect from 1.1.1986. In order to examine all aspects relating to the Revision of Pay Scales of College Teachers in accordance with the U.G.C. Scheme, the State Government constituted a Committee which recommended the adoption of the said pay scale with certain modifications. The Federation of the teaching staff is said to have given an undertaking to the effect that teachers in the degree colleges would permanently opt to remain outside the purview of the State Pay Scales. It also agreed to the absorption of the existing readers including supernumerary Readers in the cadre of Lecturers. (Senior Scale) and the existing Professors in the cadre of lecturers (Selection Grade) besides agreeing to the investment of the arrears of pay and allowances, on account of fixation of pay in the modified U.G.C. Scales in National Saving Certificates.
5. On receipt of the recommendations from the Committee, the State Government requested the Central Government to convey its approval to the adoption of the revised U.G.C. Scheme with certain modifications for the teachers of the Arts, Science and Commerce Degree Colleges under the control of the Department of Collegiate Education with effect from 1.1.1986, and on receipt of the necessary clarification from the Government of India, issued Government Order No. ET 88 UN! 80 dated 25th March 1989 sanctioning Revised U.G.C. Pay Scales with certain modifications in favour of the teachers of the aforesaid Colleges with effect from 1.1.1986. As per the said order lecturers were to be placed in the pay scale of Rs. 2000-3250/ – Lecturers (Senior Scale) in Rs. 2750-4550/- and lecturers (Selection Grade) in the pay scale of Rs. 3000-5000/- Those working as Principals first Grade were to be placed in the pay scale of Rs. 3700-5300/-. Options were however given to the existing Readers, Supernumerary Readers and Professors to keep themselves out of the scheme if they so desired. Consequent upon the issue of the above order, the Government of India released a sum of Rs. 16 Crores representing 80% of its share towards the extra expenditure incurred on account of the grant of U.G.C. Scales and a further sum of Rs. 10 Crore by letters dated 28th March 1989 and 15th December, 1989 respectively.
6. The modified U.G.C. Scheme introduced by the State Government did not however find favour with the College Teachers who demanded the extension of UGC Pay Scales in toto and the adoption of the Government of India Scheme in its entirety at the same time retaining the designation of Readers, Professors and Senior Professors prevalent under the State Scheme. Consequently, the State Government, held detailed discussions with the Federation of the University and College Teachers Association, Karnataka Government College Professors Forum, Bangalore. A Committee for formulating the work load of the College teachers consequent upon the implementation of the Revised UGC Pay Scales was also constituted. Upon examination of the demands and the views expressed by the various teachers organisations, the Government issued Order ED UNI 88 dated 30th March 1990 whereby in supersession of its previous order dated 25th March 1989 it sanctioned the Revised UGC Pay scales to the teachers working in the first Grade Degree Colleges with effect from 1.1.1986 and prescribed the scheme under which the said scales were to be extended. A perusal of the Government Order shows that from the date the scheme was made effective i.e., 1.1.1986, the College teachers working in the first grade degree Colleges were to be classified in the following cadres and pay scales indicated against them:-
1)Lecturers Rs. 2,200-75-2800-100-4000;
2) Lecturers (Senior Scale) 3000-100-3500-125-5000;
3)Lecturers (Selection Grade) 3700-125-4950-195-5700;
The scheme further provided that the existing Readers and Supernumerary Readers shall be designated as Lecturers (Senior Scales), and the existing Senior Professors were to be designated as Lecturers (Selection grade) with one additional increment for every block of five years of completed service as Senior Professors in the pay scale of Rs. 3700-5700/- Para-13 of the Government Order introducing the scheme gave to the existing Readers, supernumerary Readers and Professors an option to keep themselves out of the Scheme and retains their existing designations. Option once exercised was made final and irrevocable with a further condition that such Readers and Professors will not be eligible for any further promotion. Since a major part of the controversy in these petitions turns on the interpretation of para 13 and its effect it is useful to extract the same in extenso.
“Such of those existing Readers/Supernumerary Readers/Professors who do not opt for the revised pay scales and scheme and new designations may retain their existing designations and existing State Government scales of pay. The Readers Supernumerary Readers/Professors who desire to keep themselves out of the scheme should give their option to this effect in writing within one month from the date of this Order to the Accountant General through the Director of Collegiate Education. Option once exercised shall be final and irrevocable. Such Readers and Professors will not be eligible for any further promotions.”
7. It is not in dispute that in pursuance of the option available under the foregoing provision of the scheme each one of the petitioners opted for the new designations and the revised UGC pay scales offered under the Government Order. Option letters duly signed by the petitioners were produced during the course of the hearing, all of which were admitted by the Counsel for the petitioners. In the case of petitioner in W.P.No. 43183/93 his option form even though submitted appears to have remained unsigned by him. It is however admitted that even the said petitioner had agreed to be governed by the new scheme and had consequently received the arrears of pay dues under the Revised UGC scales with effect from 1.1.1986. Suffice it to say that having received the arrears admissible to him under the UGC Pay Scales, the inadvertent omission to sign the option from even though submitted and accepted is rendered inconsequential.
8. Apart from questioning the validity of para 13 extracted above, the petitioners have also challenged the instructions issued by the Regional Deputy Director and the Director of Collegiate Education dated the 16th of February, 1993 and 3.3.1993 respectively whereby the seniority position of the petitioners and other employees as the same existed on the 31st December, 1985 has been directed to be maintained and the regularisation of promotions or appointments made after the 1st of January, 1986 declined.
9. Appearing for the petitioners Mr. Subramanyam Jois argued that para 13 of the impugned Government Order was bad because the same purported to deprive such of the Readers and Professors as did not opt to be governed by the UGC scheme of their right to get promotion, in the State pattern otherwise prevalent and applicable to them. The Government could not, urged the learned Counsel, deprive an employee of his valuable right to seek promotion as per the existing scheme simply because they had opted to remain outside the UGC scheme. Any such attempt to deny to any such employees their vested rights was according to Mr. Jois legally untenable and fell foul of the rights guaranteed to such employees under Article 14 & 16 of the Constitution. The argument though attractive does not appear to be equally sound; for it proceeds on the fallacy that the present Writ Petitions have been filed by those who have opted to remain outside the UGC scheme and are thus threatened with loss of promotion in terms of para 13 (supra). The fact of the matter however is that each one of the petitioners has opted to be governed by the UGC scheme so that the question of their retaining the designations earlier held by them or being promoted against the same does not arise. Suffice it to say that having opted for the UGC scales, the petitioners cannot complain of loss of promotional avenues of such of their colleagues as may have opted to continue in the State pay scales, even though it is admitted that none out of a ten thousand teaching Staff members working in the Private aided Colleges except one Shri Malimaddanna had opted to remain out of the UGC scheme. Even Malimaddana’s grievance against the denial of promotional chances proved abortive before the Karnataka Administrative Tribunal: see 1994 KSLJ page 399. In that view therefore the first limb of the argument advanced by Mr. Jois must fail.
10. It was next argued that the option given to the existing members of the teaching staff under para 13 of the Government Order was no option in the eye of law. This according to Mr. Jois was so for precisely speaking two reasons. Firstly because the option was offered under a threat looming large that those who do not fall in line with the UGC scheme would lose their promotional chances in the State scales and Secondly because, the members of the teaching staff did not have a dear idea as to the rules/regulations and guidelines relating to the scheme of recruitment, career advancement, appraisal of performance and other conditions of service which the Government had promised to issue separately in terms of para 14 of the Government Order but have not been issued till date. In the absence of the said Rules and Regulations, contended Mr. Jois, the teaching Staff did not have a fair and reasonable opportunity to make their choice between the two schemes offered to them by the Government. Reliance was placed by Mr. Jois upon a Judgment of the High Court of Madhya Pradesh in support of his submission.
11. I have given my anxious consideration to the submissions made by Mr. Jois, but regret my inability to accept any one of them.
12. It is true that para 13 of the Government Order does purport to deny the promotional avenue to those who would opt to stay out of the UGC scheme but the same did not in my opinion amount to exercising any coercion or duress upon the petitioners or others like them, in regard to the exercise of their option whether or not to accept the UGC pattern. The petitioners could legitimately opt to remain in the State Scales subject to their right to challenge the validity of para 13 in so far as it deprived them of the chances of future promotion. The very fact that one of the options given was disadvantageous by reason of the existence of a condition which in the estimation of the petitioners, was unreasonable or violative of their rights did not amount to depriving them, of the right to make a choice. Equally untenable is the submission that since the petitioners did not know about the Rules and Regulations relating to recruitment and career advancement the exercise of option by them could not be valid or binding upon them. If that were really so, the petitioners ought to have asked the respondents to frame and issue the said Rules before calling upon them to elect one of the two schemes. Suffice it to say that there is nothing to show that the exercise of the options by the petitioners was in the least mistaken by any specific feature of the UGC policy having been either concealed from them or distorted in its presentation. On the contrary the petitioners not only opted to be governed by the UGC scheme but even benefited from the same by drawing the arrears with effect from 1.1.1996 in the UGC pay scales, which they would not have otherwise been entitled to had they choosen to be governed by the State scales. Does’nt this amount to approbating and reprobating; Is’nt this conduct impermissible by estopple, and the Doctrine of election? My answer is in the affirmative. The petitioners cannot accept the transaction for what is advantageous to them and refute, what is not, nor can they after benefiting from the choice made turn round and question the same on the ground that they were not aware of its consequences or that they were misled by some feature that remained undiscovered. The exercise of options by the petitioners were unconditional, and without any protest or reservation whatsoever. In some of the option forms it is even specifically mentioned that the UGC Schemes are more beneficial to the person exercising the option. In that background, therefore I see no valid reason how and why the petitioners can wriggle out of the consequence of their election which was in terms of the Government Order in question irrevocable in nature.
13. Reliance upon the judgment of the High Court of Madhya Pradesh in Dr. SHIVA NAND’s case 1968 SLR 874 is also mis-placed. All that the said decision lays down is that for a valid exercise of an option it is essential that the party opting should be cognisant of his right. He must have the knowledge of his/her right to opt and that he must be left to his own free will to take or do one thing or another. There can indeed be no quarrel with any one of these propositions. The question however is whether the exercise of the option by the petitioners in the instant case is vitiated by the absence of any one of the essential requirements. It is not the case of the petitioners that they did not have the knowledge of their right to opt. Indeed, such an option was specifically given by para 13 of the Government Order about which the petitioners can hardly pleaded ignorance. It is also not their case that a reasonable opportunity for exercise of the option was not given for it is not denied that time for exercise of the option was extended more than once and the petitioners did in fact exercise their options. Having done so, it is not open to them to turn round and contend that they did not properly appreciate its consequences or that they were coerced into exercising the option one way or the other. The challenge to para-13 of the Government Order and so also the attempt to reverse the legal consequences of the options already exercised by the petitioners must therefore fail.
14. That brings me to the other limb of the petitioner’s case touching upon the validity of the orders issued by the Deputy Director and the Director of Collegiate Education declining to recognize promotions made after 1.1.1986 and directing the continuance of the seniority list as it existed on 31st December, 1985. M/s. Subramaniyam Jois, and Basava Prabhu Patil, contended that the impugned directions were legally bad being outside the scope of the UGC Scheme introduced by the Government both in regard to the non-recognition of the promotions made after 1.1.1986 as also the continuance of the seniority as the same stood on 31st December, 1985. It was urged that the Director or the Deputy Director did not have any authority to issue directions contrary to the scheme promulgated by the Government particularly when any such direction was aimed at depriving the petitioners of their vested right as regards promotions or appointments secured by them after 1.1.1986.
15. Mr. U.L Narayana Rao, learned Counsel appearing for some of the Respondents, on the other hand argued that the petitioners having accepted the UGC Scheme without demur were bound by the said scheme particularly after they had benefited under the same, in that they had not only drawn the arrears of pay in the higher scales made applicable to them but were drawing even the current salary in the said scales. He submitted that the entire system of categorisation of the cadres and pay scales stood overhauled. According to the new system all those who had opted to be governed by the U.G.C. scheme were to be designated on the basis of the length of their service into one of the three designations namely Lecturers, Lecturers (Senior Scale) and Lecturers (Selection Grade) with effect from 1.1.1986. Any promotion or appointment made after the said date argued the learned Counsel was bound to pale into insignificance for the scheme did not envisage recognition or continuance of any such appointment or promotion. Seniority it was urged by the learned Counsel, among the teaching staff as the same existed immediately prior to the introduction of the UGC Scheme, was also rightly continued for that was the last combined seniority which had the approval of the department immediately preceding the introduction of the UGC Scales.
16. I find considerable merit in the submission made by Mr. Narayana Rao. A careful and harmonious reading of the various provisions of the Government Order dated 30th March, 1990, which introduced the UGC Scheme, shows that with effect from 1.1.1986 that is the date when the scheme came into force retrospectively, the staffing pattern in the degree Colleges were to undergo a complete change resulting in the abolition of existing designations of Readers, Professors and Senior Professors, all of whom were to be re-designated as Lecturers, Lecturers (Senior Scale) Lecturers (Selection Grade) by application of the norms fixed for such re-designation under the said scheme. In other words with effect from 1.1.1986, the UGC scheme did not envisage the posts of Readers, Professors or Senior Professors in these Colleges. This implies that with effect from 1.1.1986, all those who opted for being governed by the UGC scheme were to be re-designated into one of the three cadres mentioned above depending upon the length of their service for placement in the appropriate pay scales admissible to these cadres. It also follows that any promotion or appointment to any post of Reader, Professor or Senior Professor made after 1,1.1986 was in the very scheme of things to be ignored for the scheme did not envisage continuance or recognition of any advantage or benefit which an appointee or promotee may have secured after the aforesaid date. The retroactive operation of the scheme for all intents and purposes means that the scheme had been actually enforced with effect from 1.1.1986 and the re-designations into the three new cadres introduced thereunder brought about with effect from the said date. That being so, it is difficult to uphold the contention urged on behalf of the petitioners that even when they had to be re-designated into one of the three cadres as on 1.1.1986, the advantage if any by way of promotion or appointment secured after the said date must or could also continue. The continuance of any such benefit would be manifestly contrary to and in compatible with the letter and spirit of the scheme for once the redesignations took place on 1.1.1986, the question of any one of those redesignated getting any promotion or appointment dehors the scheme did not arise. The authorities were therefore justified in clarifying that promotions granted or appointments made to higher posts after 1.1.1986 shall not be recognised, of course, in respect of only such of the members of the teaching staff as had opted to be governed by the new scheme. This is true even in respect of the seniority which was settled among the members of the staff as on 31st December, 1985. There is nothing on record to show that any seniority list of the teaching staff has been approved by the Directorate of Collegiate Education or the Government for that matter at any time after 31st December, 1985. The Government Counsel made a specific statement to the effect that no seniority list after 31st December, 1985 has been issued or approved. This position has remained uncontroverted. In the circumstances taking the seniority position to be the same as stood settled immediately prior to the introduction of the UGC scheme cannot be said to be illegal or arbitrary nor can any such clarification issued be deemed to be contrary to the scheme so as to warrant any interference.
17. Mr. Jois next argued that the petitioners as also the Institutions where they were working were governed by Karnataka Private Educational Institutions Act 1975 and the Rules framed thereunder. He urged that determination of seniority of teachers working in the Aided Institutions was governed by the provisions of the Act aforesaid and the Rules framed thereunder with the result that any executive direction contrary to the statutory provisions, would be legally bad and shall have to be ignored. The argument was that the clarifications issued by the Directorate of Collegiate Education as regards the continuance of the seniority list was contrary to the provisions of the statutory Rules and therefore liable to be quashed. I find no merit in this submission either. All that the provisions of the Rules referred to and relied upon by Mr. Jois require is that a seniority list must be prepared. That a seniority list has actually been prepared in accordance with the relevant Rules and stands approved as on 31st December, 1985 is not in dispute nor have the petitioners or any one of them called in question the said list. What is challenged is the continuance of the said list even after the introduction of the UGC scales with effect from 1.1.1986. I see no contradiction between the provisions of the Rules requiring the preparation of a seniority list and the directions issued for the continuance of the list already prepared for the period following 1.1.1986. It is not a case where the authorities have directed the preparation of a list contrary to any statutory Rules or Regulation. It is on the contrary a case where the list prepared in accordance with the Rules and duly approved has been directed to be continued even after the introduction of the new scheme. I have therefore no hesitation in rejecting this argument of Mr. Jois.
18. It was then contended by Mr. Patil appearing for some of the Respondents that since the scheme mereges the cadre of Readers with that of lecturers those who were in the higher cadre were entitled to the benefit of their seniority over all those who came from the lower cadre. Reliance in this connection was placed by Mr. Patil upon the Decisions of this Court in GURUSHANTHAPPA M. AND ORS. v. DIRECTOR OF AGRICULTURE AND ORS., 1977(2) KLJ P. 440 AND CHAIRMAN RAILWAY BOARD v. THIMMANNA, 1980(2) KLJ S.N. 47. There is no substance in this submission also. The cases cited by Mr. Patil relate to merger of two cadres into one, in which event alone does the principle laid down in the, judgments cited by Mr. Patil find any application. The present is not however a case of merger of cadres. Here the petitioners had the option of either accepting or remaining out of a scheme according to which the existing designations were to be changed and fresh designations given depending upon their length of service. Those who opted to be governed by the new scheme had to accept the result of such re-designations brought about on the basis of the norms settled by the scheme. Such a re-designation did not envisage the grant of any benefit for the service rendered in the so-called higher cadres of Readers and Professors which designations stood abolished with effect from the date the scheme was introduced no matter in regard to only those has had opted to be governed by the scheme. Such being the position, the principles settled in the judgments cited by Mr. Patil have no application particularly when the context in which the same have been laid down, is totally different from the facts of these cases.
19. In the result these petitions fail and are accordingly dismissed with costs assessed at Rs. 500/- in each petition.