The Punjab and Haryana High Court has ruled that retired university teachers, who acquired PhD degrees during service, cannot be denied two advance increments merely because they opted for the Merit Promotion Scheme (MPS) instead of the Career Advancement Scheme (CAS).Holding that an employee cannot be presumed to have surrendered a benefit which did not exist when the original choice was made, the court struck down the restriction excluding MPS teachers from the incentive.Justice Harpreet Singh Brar held that the distinction between MPS and CAS teachers had no rational connection with the objective of rewarding higher academic qualifications and violated Article 14 of the Constitution.“This Court concludes that the petitioners, having exercised their option to remain under the MeritPromotion Scheme (MPS) at a time when the incentive of two advance increments for in-service Ph.D. holders did not exist, are not precluded by the doctrine of election from claiming that incentive,” Justice Brar ruled.A right that did not exist could not have been surrenderedJustice Brar rejected the State’s argument that teachers, who had opted for MPS, could not subsequently claim the incentive available to CAS teachers. Relying on a Supreme Court’s judgment, the court reiterated: “There can be no waiver of a non-existent right.”Justice Brar pointed out that the petitioners had opted for MPS in the late 1980s, whereas the incentive of two advance increments for acquiring a PhD during service was introduced through ICAR/DARE instructions dated March 3, 1999. They could not have knowingly surrendered a benefit that had not come into existence when they exercised their promotional option.“In the absence of an existing right, there could be no conscious intention to surrender it. Therefore, a promotional option exercised in the 1980s cannot operate as an implied forfeiture of an academic incentive created years later,” Justice Brar asserted.University could not narrow the scope of the instructionsThe March 3, 1999, ICAR/DARE instructions expressly provided: “A teacher will be eligible for two advance increments as and when he acquires a PhD degree in his service career.”DARE subsequently clarified on November 14, 2005, that the incentive would be extended uniformly to teachers who acquired PhDs during service, including those who obtained the qualification before January 1, 1996, with actual benefits from July 27, 1998.However, the University’s notification dated May 31, 2007, restricted the benefit to CAS teachers. The High Court held that this restriction amounted to a substantive modification of the earlier instructions and could not be justified as a mere clarification.The court also relied on DARE’s communication dated June 25, 2007, which recognised MPS as a career progression scheme existing before January 1, 1996, and stated: “The request of MPS teachers may therefore be considered by the University in consultation with the State Government.”Promotional avenues cannot determine academic incentivesRejecting the argument that MPS teachers had enjoyed better promotional opportunities, the court explained that promotion and academic incentives served different purposes. Justice Brar observed: “Advance increments are monetary incentives granted as a direct recognition of scholarly achievement.”Justice Brar specifically held that MPS and CAS teachers were similarly situated for the purpose of the PhD incentive. They performed identical teaching and research responsibilities and possessed the same relevant qualification — a PhD acquired during service. “Such teachers cannot be differentiated in matters of salary and benefits on the basis of the promotional route through which they advanced.”The court also noted that 23 teachers who shifted from MPS to CAS after the abolition of the former scheme received the increments without any change in their academic qualifications. “This differentiation is further established by the fact that 23 leftover teachers transitioned from MPS to CAS were released the advance increments without any alteration in their qualifications, exposing that the benefit was granted solely on the fortuitous label of the scheme rather than any academic attribute,” Justice Brar noted.Pay and pension revision within 3 monthsAllowing the petition, the court quashed the Haryana Government’s communication dated March 15, 2011, and set aside the May 31, 2007, notification condition restricting the incentive to CAS teachers, to the extent that it excluded MPS teachers.It directed the respondents to grant the petitioners two advance increments notionally with effect from July 27, 1998, and refix their pay up to their respective dates of superannuation, followed by revision of pension and retirement benefits.However, actual arrears were restricted to the three years immediately preceding the filing of the writ petition on July 25, 2011.Justice Brar directed the respondents to complete pay and pension refixation, computation and disbursement of admissible arrears within three months of receiving a certified copy of the order. In case of default, the arrears would carry interest at 6 per cent per annum until actual payment.