1. The petitioner, who retired as Professor from Sher-e-Kashmir University of Agriculture, Science and Technology, Srinagar [“SKUAST-K”] has filed this petition seeking, inter alia, the following reliefs:
(a) Certiorari for quashing and setting aside the Order No. 584 (Est.) of 2012 dated 08.06.2012 issued by respondent no. 1 to the extent, the petitioner has been wrongly granted promotion as Professor cum Chief Scientist (Agronomy) from 01.05.2006, instead of 28.07.1998 to which the petitioner was legitimately entitled to.
(b) Mandamus commanding and directing the respondent-University to grant promotion to the petitioner as Professor cum Chief Scientist (Agronomy) w.e.f. 28.07.1998.
2. The case set up by the petitioner is that he, while being in the service of SKUAST-K was promoted as Assistant Professor, Agronomy on 10.11.1982 and thereafter, as Associate Professor vide University Order No. 478 (Estt.) of 1989 dated 26.08.1989. It is pleaded that, with a view to provide for Career Advancement of Teachers in the State and Central Agricultural Universities, detailed guidelines with criteria came to be issued by the Indian Council of Agriculture and Research (ICAR) vide its F. No. 21 (10)/99-PER/V dated 19.07.2000. Paragraph 2.5 of the said guidelines deals with promotion to the post of Professor under the Career Advancement Scheme (CAS). It is submitted that, with a view to update the SKUAST statutes so as to bring them in accord with the CAS guidelines issued by ICAR, the University vide Notification No. 01 of 2002 dated 26.06.2002 effected necessary amendments in the statutes. It is pleaded that paragraph 2.5 of the CAS promulgated in the year 2000 which was later embodied in the University statutes provides that, apart from the sanctioned strength of professors which is required to be filled up by direct recruitment through All India Advertisement, the promotions are also required to be made by the Selection Committee to the post of Professor from a person who is an Associate Professor or has worked as such for the last eight (8) years. It is, thus, submitted that the petitioner, who came to be promoted as Associate Professor on 26.08.1989 was confirmed on the said post by the University vide its Order No.239 (Estt.) of 1992 dated 03.06.1992. The petitioner submits that though, he was promoted as Associate Professor in SKAUST-K, yet, in view of the disturbed conditions prevailing in the Valley in the year 1989-90, the petitioner had to migrate from the Valley and, therefore, his services were kept at the disposal of SKAUST-J, R.S.Pura vide Order No. ADR/Acd/Migrant/91-92/2392 dated 31.10.1991. The petitioner was, accordingly, adjusted in the SKAUST-J in Agronomy Division. The petitioner claims that he having put more than eight years of service as an Associate Professor was entitled to the promotion to the post of Professor under CAS adopted by the University. The petitioner was not given the benefit of CAS despite he having made several representations in this regard to the respondent-University.
3. Having failed to persuade the respondent-University to accord him promotion to the post of Professor under CAS from the due date, the petitioner filed SWP No. 1748/2005 seeking, inter alia, a direction to the respondent-University to accord promotion to the petitioner to the post of Professor under CAS in terms of notification No. 01/2002 dated 26.06.2002 whereby the necessary amendments to the University statutes to embody the CAS promulgated by ICAR were effected. During the pendency of said writ petition, the petitioner retired on superannuation on 30.05.2006. The said writ petition was ultimately decided by this Court vide its judgment dated 11.09.2009 and a direction was issued to the respondent-University to consider the case of the petitioner for promotion under CAS. With a view to comply with the judgment passed by this Court on 11.09.2009, the respondent-University issued the impugned order whereby the petitioner was granted promotion as Professor cum Chief Scientist (Agronomy) w.e.f 01.05.2006 instead of 28.07.1998 to which the petitioner claims he was legitimately entitled to.
4. In the aforesaid background and the circumstances narrated above, the petitioner submits that he was constrained to file the instant petition seeking the reliefs taken note hereinabove.
5. The short submission of Mr. R.K.Gupta, learned Senior Counsel appearing for the petitioner is that the petitioner was entitled to the benefit of CAS promulgated by ICAR which was embodied by the University in its statutes vide Notification dated 26.06.2002 (supra) w.e.f 28.07.1998, but the same was denied to him by passing an order which, on the face of it, is arbitrary. He argues that the respondent- University has not indicated any reason as to why the petitioner has not been found entitled to his promotion under CAS w.e.f 28.07.1998.
6. By way of supplementary affidavit, the petitioner has also brought on record that two Associate Professors of SKUAST (K), namely Dr. Mohd. Sidique and Dr. Gulzar Ahmad Wani, who were similarly placed with the petitioner, were granted promotion to the post of Professor retrospectively with effect from 27.07.1998 and 08.06.2008 respectively and, therefore, there was no reason or justification available to the respondents to deny the similar treatment to the petitioner. It is submitted that the petitioner has been discriminated only on the ground that he had migrated from the Valley and was not performing his actual duties in the Kashmir Valley.
7. Placing strong reliance upon the University statutes as amended vide Notification No. 01 of 2002 dated 26.06.2002 in particular on its Note (a), learned Senior Counsel urges this Court to intervene in the matter and issue directions to the respondent-University to undo the wrong and grant the benefit of promotion to the post of Professor to the petitioner w.e.f 28.07.1998 to which the petitioner is legitimately entitled to.
8. The petition of the petitioner is contested by the respondent-University, who, in their objections, have not denied the eligibility of the petitioner for promotion to the post of Professor under Rule 2.5 of the University statutes, but submit that the promotion was subject to fulfillment of certain prerequisites. It is submitted by the Respondent-University that owing to non-submission of requisite papers/documents by the petitioner, his case could not be considered earlier. The case of the petitioner was, however, considered pursuant to the judgment passed by this Court in SWP No. 1748/2005 and the same was placed before the Screening Committee. The petitioner was also asked to appear before the Selection Committee for interview and it was only after completion of requisite formalities, the Selection Committee recommended his promotion as Professor cum chief Scientist (Agronomy) under CAS. It is submitted that though, the petitioner did not report back for duties in the valley till his retirement, yet, the University, with a view to extend the pensionary benefits, granted him the promotion w.e.f 01.05.2006. The reliance is also placed by the Respondent-University on the communication of the State Government issued vide No GAD(Adm)2014/200-1 dated 29-03-2001 to urge that such migrant employees, who are cleared by the DPCs concerned, are entitled to the benefits of promotion only if they join their new places of posting in the valley against which they have been so promoted. It is, however, left to the University to take a decision on its own accord. It is, thus, argued by Mr. Raina, learned Senior Counsel that since the petitioner never reported back for duties in SKAUST-K in Srinagar and, therefore forfeited his right to promotion if, at all, it was there.
9. Heard learned counsel for the parties and perused the record.
10. Indisputably, the petitioner was promoted as associate professor in Agronomy on 26.08.1989 and was later confirmed upon completion of probation period satisfactorily on 03.06.1992. The petitioner, therefore, completed his service of eight years as associate professor on 25.08.1997 and, therefore, as per the Career Advancement Scheme (pre-modified procedure), which was then in vogue, became eligible for promotion to the post of professor on 25.08.1997. That being the position, it is wrong to contend that petitioner is not entitled to the benefit of Note (a) of the Career Advancement Scheme for teachers which became part of the University statutes in the year 2002. For reference, clause 2.5 and Note (a) referred to above are reproduced here under:
2.5) Professor (Promotion)
In addition to the sanctioned position of professors, which must be filled in through direct recruitment through all India advertisements, promotions may be made from the post of Reader/Associate professor to that of Professor after 8 years of service as Reader/Associate Professor.
The Selection Committee for promotion of the post of professor should be the same as that for direct recruitment. For the promotion from Reader/Associate Professor to Professor, the following method of promotion may be followed.
The candidate should present herself/himself before the Selection Committee with some of the following;
a) Self-appraisal reports (required)
b) Research Contribution/books/articles/articles published.
c) Any other academic contributions
The best three written contributions of the teacher (as defined by her/him) may be sent in advance to the experts to review before coming for the selection. The candidate should be asked to submit these 3 sets with the application.
d) Seminars/Conferences attended.
e) Contribution to teaching/academic environment/institutional corporate life.
f) Extension and field outreach activities.
The requirement of participation in orientation/refresher courses/summer institutes, each of at least 3 to 4 weeks duration and consistently satisfactory performance appraisal reports, shall be the mandatory requirement for Career Advancement for Lecturer (Senior Scale)/ Assistant Professor (Senior Scale) to Lecturer (Selection Grade)/ Assistant Professor (Selection Grade) wherever the requirement of orientations/refresher courses has remained incomplete, the promotions would not be held up but these must be completed by the year 2002.
The requirement for completing these courses would be as follow:
i) For Lecturer/Assistant Professor to lecturer (Senior Scale)/ Assistant Professor (Senior Scale), one orientation course would be compulsory for university and College teachers. Those without Ph.D. would be required to do one refresher course in addition.
ii) Two refresher courses for Lecturer (Senior Scale)/ Assistant Professor (Senior Scale) to Lecturer (Selection Grade)/ Assistant Professor (Selection Grade).
iii) The senior teachers like Reader/Associate Professor/Lecturers (Selection Grade)/ Assistant Professors (Selection Grade) and Professor may opt to attend two seminars/conference in their subject area and present papers as one aspect of their promotion/selection to higher level or attend refresher course to be offered by ASCs for this level.
Teacher eligible for placement/promotion before 27.07.1998 will be governed by pre-revised provisions of Career Advancement Scheme for teachers of SKUAST-K Statutes.
(underlined by me)
11. Since from the reading of Clause 2.5 and the Note:- (a) appended after clause (6) of the CAS, it is abundantly clear that the petitioner who had completed 8 years of requisite service required under pre-modified procedure for Career Advancement for teachers, which was in vogue prior to 26.06.2002, was entitled to his promotion to the post of Professor with effect from 27.07.1998 in terms of Note (a). Dr. Sidique, as per the respondents, had completed requisite service of 8 years and was eligible for promotion to the post of professor under CAS before 27.07.1998- the cut off date mentioned in Note (a). He was, therefore, given the benefit of promotion with effect from 27.07.1998 till his retirement on superannuation on 31.05.2001. Dr. Gulzar Ahmad Wani, who acquired the eligibility after the cut off date i.e., 27.07.1998 was given promotion as professor-cum-Chief Scientist (Agronomy) with effect from 08.06.2008 to his date of superannuation i.e. 31.12.2011.
12. Viewed thus, it is clear that petitioner is similarly situated with Dr. Mohd. Sidique but is not so situated with Dr. Gulzar Ahmad Wani, therefore, the case of the petitioner was required to be considered under the pre-modified Career Advancement Scheme as it existed at the time of amendment in the University statutes which was made vide notification No. 1/2002 dated 26.06.2002. In terms of Note (a) thereof, the petitioner, who had completed eight (8) years of service as Associate Professor (Agronomy) before 27.07.1998, became entitled to promotion to the post of professor under CAS on 27.07.1998 in view of Note:- (a) of CAS of 2002 and on the analogy of Dr. Sidique. It appears that the petitioner was not considered by the respondents on the ground that in the year 2002, the petitioner was not physically working in SKUAST-K and was drawing his leave salary as migrant employee of the university. The respondents have not denied the assertion of the petitioner that immediately after the promulgation of the CAS of 2002, he had submitted his requisite documents and his case was also considered by the Selection Committee. But the stand of the respondent-University is that in terms of State Government’s communication No. GAD (Adm) 2014/200-1 dated 29.03.2001, the petitioner was entitled to the benefit of promotion only if he would join his new place of position in the Valley against which he had been promoted.
13. Before I proceed, I deem it appropriate to reproduce the relevant extract of the Government communication (Supra):-
“As a policy of State Government, such of the Government employees who have migrated from the Valley and are getting leave salary are considered for promotion by the respective DPCs provided they are eligible for promotion and posts available are to be filled up. Such migrant employees who are then cleared by the concerned DPCs are entitled to the benefits of promotion only if they join their new places of posting in the valley against which they have been so promoted. The University may however take a decision on its own accord”.
14. Mr. D. C. Raina, learned Advocate General strongly relies upon the aforesaid communication and submits that since the petitioner though cleared by the Selection Committee for promotion to the post of Professor did not join as professor in the Valley in SKUAST-K and was, therefore, rightly not accorded the benefit of promotion. There is inherent fallacy in the argument of learned Advocate General. From a bare reading of the communication of 2001 reproduced above, it is crystal clear that promoted migrant employee would forfeit the benefit of his promotion only if he/she fails to join his new place of posting in the Valley against which he/she has been so promoted. Needless to say that “Joining” is an event that happens or occurs after promotion. No employee can submit joining report against the promotion post merely on the basis of his clearance for such promotion by the departmental promotion committee. In the instant case, Selection Committee only appears to have considered his case and found him eligible for promotion and the competent authority was yet to issue the order of promotion. In the absence of formal order of promotion issued by the competent authority there was no occasion for the petitioner to submit his joining in the Valley. The representations filed by the petitioner which are part of the writ petition clearly demonstrate that petitioner has all along shown his willingness to serve in the Valley against the promotion post provided he is promoted by a formal order. It is thus clear that at the relevant point of time, i.e. in the year 2002, when respondent-University was under statutory obligation to consider the petitioner for promotion to the post of Professor (Agronomy), under Note (a) of CAS of 2002, the respondent-University failed to perform its statutory duty. The reason and justification put forth by the respondent-University to deny this relief to the petitioner flies on the face of communication of GAD dated 23.03.2001. Had the respondent-University issued a formal order of promotion in favour of the petitioner and asked him to join, it could have withdrawn the benefit of promotion on the failure of the petitioner to physically join and perform his duty in the Valley where SKUAST-K is located. This, however, is not the case on hand as taken note of herein above. The petitioner having failed to persuade the respondent to grant him promotion under CAS was constrained to file SWP No. 1748/2005 and pursuant to the direction passed in the said writ petition, the respondents placed the matter before the Screening Committee and ultimately granted benefit of promotion to the petitioner with effect from 01.05.2006, whereas the petitioner retired on superannuation with effect from 31.05.2006. This was done by the respondents more than six years after his retirement i.e. on 08.06.2012.
The petitioner has not been treated fairly by the respondents. The petitioner was a migrant employee having been permitted by the respondents to draw leave salary at par with thousa
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nds of other government employees, who had to leave their home and hearth due to disturbed law and order conditions in the Valley in the year 1989-90. The respondent-University has, however, treated the petitioner as if he was unauthorisedly absent and therefore not entitled to any service benefits. Had that been the case, respondents could not have granted him the benefit of promotion even from 01.05.2006. 15. Having regard to facts and circumstances of the case, and in particular stand taken by the respondents, I am of the considered view that the petitioner has been wronged in the matter of grant of promotion to him to the post of Professor which was due to him in terms of Note (a) of CAS as embodied in the statutes of University in the year 2002 vide notification No. 01/2002 dated 26.06.2002. He is, therefore, found entitled to promotion to the post of professor with effect from 27.07.1998. 16. For the aforesaid reasons, this petition is allowed. The petitioner is held entitled to the benefit of promotion to the post of Professor-cum-Chief Scientist (Agronomy) with effect from 27.07.1998 instead of 01.05.2006, as has been done by the respondent-University vide order No. 584 (Est) of 2012 dated 08.06.2012. The petitioner is held entitled to all the consequential benefits which will flow to him consequent of his placement in the pay scale of Professor with effect from 27.07.1998. The arrears shall be payable to the petitioner along with the interest at the rate of 6.5% per annum to be calculated with effect from 27.07.1998 till the same are actually released in favour of the petitioner. The respondents shall do well to issue necessary corrigendum to the order dated 08.06.2012 and release the consequential benefits as aforesaid in favour of the petitioner within a period of two months from the date copy of this order/judgment is served upon the respondent-University. This writ petition is, accordingly, disposed of.