w w w . L a w y e r S e r v i c e s . i n



Dr. Rajendra Mishra v/s University of Jammu & Others

    SWP. No. 1447 of 2017

    Decided On, 29 October 2021

    At, High Court of Jammu and Kashmir

    By, THE HONOURABLE MR. JUSTICE RAJNESH OSWAL

    For the Appellant: Ankur Sharma, Advocate. For the Respondents: R1, Ajay Abrol, R4, Jatinder Choudhary, Advocates.



Judgment Text

1. In the instant petition, the petitioner has prayed for the following reliefs:

(a) Quashing the communication bearing No. F.9-3/2010 (PS/Misc.) Pt. F1-III dated 06.03.2017 addressed by respondent No. 4 to the Principal Secretary to Governor’s Secretariat J&K, Raj Bhawan, Jammu, whereby and where under, the UGC has conveyed that there is no justification for grant of retrospective Career Advancement Scheme promotion to the petitioner from the date of his eligibility in the cadre;

(b) Quashing the communication bearing No. Adm/TW/2017/788 dated 30.05.2017 addressed by respondent No. 3 to the petitioner;

(c) Quashing the communication dated 14.03.2017 addressed by the office of the Hon’ble Chancellor’s office;

(d) Direction to the respondents to grant the promotion to the petitioner as Professor under Career Advancement Scheme i.e. w.e.f. 04.08.2019, when the petitioner acquired eligibility for promotion, to the post of Professor along with all consequential benefits;

(e) Directing respondents to reckon the seniority of the petitioner as Professor w.e.f. 04.08.2009.

2. It is stated in the petition that the petitioner was initially appointed as Lecturer, Management Studies pursuant to the selection made by the Selection Committee of Jammu University vide letter of appointment dated 17.06.1992 and later on, the petitioner was promoted as Senior Lecturer under Career Advancement Scheme vide order dated 19.12.2000 and thereafter, the petitioner was further promoted as Reader under the Career Advancement Scheme vide order dated 04.09.2004 and thereafter, the petitioner was promoted as Senior Lecturer with retrospective effect w.e.f. 27.07.1998 vide order dated 07.12.2007 and the promotion of the petitioner as Reader was also given retrospective effect w.e.f. 04.08.2001. Later on, by way of subsequent order dated 17.12.2007, order dated 07.12.2007 was modified and the retrospective effect of promotion of the petitioner to the post of Senior Lecturer and Reader was changed i.e. instead of 27.07.1998, the effect of the promotion of the petitioner as Senior Lecturer was given from 04.08.1998 and insofar as, post of Reader is concerned, the same was changed from 04.08.2001 to 04.08.2003. The petitioner was further promoted as Assistant Professor w.e.f. 04.08.2006. It is further stated that the University Grant Commission respondent No. 4 herein in exercise of powers conferred under Clause (e) and (g) of the sub-section (1) of section 26 of the University Grant Commission(UGC) Act, 1956 framed the UGC (Minimum Qualifications for appointment of Teachers and other Academic Staff in Universities and Colleges and other measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (for short the UGC Regulations, 2010). Regulation/Clause 1.3 of the UGC Regulations, 2010 provides that in the event, any candidates become eligible for promotion under Career Advancement Scheme in terms of these Regulations on or after 31.12.2008, the promotion of such candidate is to be governed by the provisions of these regulations.

3. The respondent Nos. 1 to 3-University of Jammu issued an advertisement on 18.09.2012 inviting applications for direct recruitment to the post of Professors and since the petitioner was fully eligible, therefore, he responded to the aforesaid advertisement for direct recruitment and as the petitioner stood promoted as Associate Professor (w.e.f. 04.08.2006), therefore, as per Regulation 4.4.5. sub-regulation (3) of the UGC Regulations, 2010, the petitioner became eligible for direct recruitment as Professor after completion of 10 years of total teaching experience with 05 years at the level of Reader (i.e. on 04.08.2008), therefore, the UGCrespondent No. 4 vide communication dated 20.05.2013 called the petitioner for appearing in the interview for the post of Professor under direct recruitment process. The interview of the petitioner was not conducted. Thereafter, the petitioner vide representation dated 25.10.2013 requested the Vice Chancellor of the Jammu University respondent No. 2 herein to conduct the interview of the petitioner immediately and forthwith.

4. The respondent No. 1 referred the matter regarding the eligibility of the petitioner to the Dean Business Studies/Director, Colleges, Development Council, who held the petitioner eligible for interview for the post of Professor under Regulations 4.4.5 of the UGC Regulations, 2010 and accordingly, the Assistant Registrar (C&R) submitted the decision to the Registrar of the Jammu University for approval, so that the call letter is issued to the petitioner and other eligible candidates. The Registrar, in turn, submitted the case for approval to the Vice Chancellor and the Vice Chancellor instead of granting approval, sought the information as to what transpired in the meeting of the Selection Committee that was fixed on 25.09.2014 and also sought the clarification as to whether the existing Professors in the Jammu University could be shifted from Career Advancement Scheme to open recruitment process and vice versa. It is further submitted that the respondent-University did not conclude the selection process for direct recruitment initiated in the year, 2012 despite having found the petitioner eligible for the said post. The petitioner claims that he was eligible for direct recruitment as Professor and for promotion under Career Advancement Scheme as well, however, as the grade attached to the post of Professor under direct recruitment process was higher than that was attached to the post of Professor under Career Advancement Scheme, therefore, the petitioner opted for direct recruitment.

5. It is further submitted that again in the year 2015, the University of Jammu issued advertisement bearing No. Adm/TW/(C&R)/15/774-825 dated 16.10.2015 inviting applications for the post of Professor in the Management Studies under direct recruitment quota and simultaneously, the University of Jammu also issued circular inviting applications from eligible candidates for promotion to the post of Professor under Career Advancement Scheme as per UGC Regulations, 2010. The petitioner applied under the UGC Regulations, 2010 for promotion as Professor under Career Advancement Scheme and the petitioner was found eligible for promotion under the Career Advancement Scheme w.e.f. 04.08.2009 i.e. the date, when the petitioner completed three years experience/service as Associate Professor. It is further stated that the Selection Committee constituted under UGC Regulations, 2010 for promotion of Associate Professor to the post of Professor in Management Studies under Career Advancement Scheme, in its meeting held on 06.05.2016 recommended the petitioner for promotion as Professor w.e.f. the date of the eligibility i.e. 04.08.2009, however, contrary to the Regulations 16.3 of UGC Regulations, 2010 that provides for grant of seniority with reference to the date of eligibility, the Selection Committee recommended for reckoning the seniority of the petitioner from the date of his joining as Professor.

6. It is further stated that pursuant to the recommendation of the Selection Committee for promotion of the petitioner as Professor under Career Advancement Scheme w.e.f. the date of his eligibility i.e. w.e.f. 04.08.2009, the University of Jammu submitted the case of the petitioner for approval before the Chancellor i.e. the Governor of J&K. It is further claimed by the petitioner that before the case of the petitioner was submitted to the Chancellor for approval, one Dr. Alka Sharma preferred a representation dated 28.04.2016 to the Vice Chancellor stating therein that she was interviewed under Career Advancement Scheme for promotion as Professor in January, 2012 and was promoted with retrospective effect i.e. w.e.f. 23.03.2010 when she acquired the eligibility, therefore, in case the recommendation of the Selection Committee is acted upon insofar as petitioner is concerned, the petitioner is entitled to be promoted as Professor w.e.f. 04.08.2009 and consequently shall become senior to Dr. Alka Sharma. In the representation, Dr. Alka Sharma had stated that since the petitioner had not applied three months prior to the eligibility for promotion under Career Advancement Scheme, as such, he could not be promoted with retrospective effect from the date of eligibility i.e. w.e.f. 04.08.2009 despite the fact that Dr. Alka Sharma had also not applied three months prior to her gaining eligibility.

7. It is further stated that the official respondents had promoted Dr. Alka Sharma as Professor w.e.f. from the date she acquired eligibility, despite the fact that she had not applied three months prior to the due date of eligibility for promotion as Professor under Career Advancement Scheme, yet the Office of the Chancellor addressed a communication to the UGC on 09.01.2017 seeking a clarification as to whether a candidate who does not apply three months in advance i.e. prior to the due date of eligibility, can be considered for retrospective promotion under Career Advancement Scheme and in response to the aforesaid communication, the UGC through the medium of communication dated 06.03.2017 conveyed that the reason assigned by the petitioner not to apply three months in advance i.e. three months prior to the date of eligibility that the petitioner had applied for direct recruitment is not tenable and the petitioner was under an obligation to apply three months in advance, therefore, cannot be considered for retrospective promotion under Career Advancement Scheme.

8. Thereafter, the respondent No. 3 vide communication dated 21.04.2017 forwarded the communication of the UGC to the petitioner and finally the respondent No. 3 vide impugned communication dated 30.05.2017 suggested the petitioner to take further necessary action in light of communication dated 21.04.2017 i.e. for reprocessing the case in terms of communication of UGC-respondent No. 4 dated 06.03.2017(supra).

9. The petitioner has impugned the communications dated 06.03.2017 issued by respondent No. 4, communication dated 30.05.2017 issued by the respondent No. 3 and communication dated 14.03.2017 issued by the office of the Chancellor on the following grounds:

(i) that the impugned communications are illegal and unconstitutional, inasmuch as Regulation 6.3.1 of the UGC Regulations, 2010 only provides that in case a candidate wishes to be considered for promotion under Career Advancement Scheme, he may submit in writing to the University, within three months in advance of the due date that he fulfills the qualification under the Career Advancement Scheme and submit to the University certain documents. It is stated that the Regulation 6.3.1 of the UGC Regulations, 2010 does not provide for submission of application and the communication dated 14.03.2017 is contrary to the Regulation 6.3.1 of the UGC Regulations, 2010.

(ii) that the action of the respondents in denying the retrospective promotion to the petitioner w.e.f. 04.08.2009 is in violation of Articles 14 and 16 of the Constitution of India inasmuch as Dr. Alka Sharma too had also not applied with three months in advance from the date of her eligibility yet despite the fact that she was interviewed in the year, 2012 and was promoted with retrospective effect i.e. w.e.f. 23.03.2010 i.e. from the date of her eligibility. It is also stated that besides Dr. Alka Sharma, number of other faculty members too have been granted promotion with retrospective effect from the date of their eligibility despite the fact that they had also not applied three months prior to the date of their eligibility.

(iii) That once the Selection Committee had recommended the case of the petitioner for promotion as Professor under Career Advancement Scheme w.e.f. the date of the eligibility of the petitioner i.e. 04.08.2009, there was no occasion for the respondents not to grant the promotion to the petitioner w.e.f. the date of his eligibility when the official respondents granted such promotion not only to Dr. Alka Sharma but to many other faculty members as well, therefore, the impugned communications are required to be quashed.

(iv) that the Regulation/Clause 6.3.1 of the UGC Regulations, 2010, nowhere provides for submission of application within three months in advance of the due date, seeking consideration of promotion as Professor under Career Advancement Scheme and what is provided in Regulation 6.3.1 is that a Teacher who wishes to be considered for promotion under Career Advancement Scheme may submit in writing to the University within three months in advance of due date that he/she fulfils all qualification under Career Advancement Scheme and submit to the University the Performance Basis Appraisal System Performa, so that no delay is caused in holding selection committee meetings. The aforesaid obligation on the part of a Teacher is directory and not mandatory and no consequences are provided on account of failure by the Teacher to submit to the University with three months in advance of due date, that he/she qualifies the criteria under Career Advancement Scheme.

(v) that the respondent-Jammu University for the first time issued a circular dated 24.03.2017 whereby it was impressed upon the teacher to submit in writing within three months in advance of the due date and even in the circular, the University incorporated the expression „within? from nowhere, whereas Regulation 6.3.1 uses the expression „with? and prior to 24.03.2017 all those teachers who were promoted to various posts including the post of Professor under Career Advancement Scheme, majority of them including Dr. Alka Sharma did not apply within three months in advance.

10. Response stands filed by the respondent-University in which the stand taken by the respondents is that the petitioner was promoted as Reader on 04.08.2003 and as Associate Professor on 04.08.2006. The application of the petitioner was accepted and the petitioner was called for interview on 21.05.2013. The interview of the petitioner was not conducted as the Selection Committee pointed out that the API scores are required to be calculated in respect of the petitioner prior to the conduct of the interview and accordingly a clarification was sought from the UGC as to whether API scores are required for confirmation for promotion in respect of faculty of Management Studies having no managerial experience in industry or otherwise and the same was accordingly clarified by the respondent No. 4- UGC vide communication dated 21.10.2013. It is further stated that as per Clause 4.4.5 of the UGC Regulations, 2010, post under the direct recruitment in the Business School was to be filled up in terms of the UGC Regulations, 2010 but the post could not be filled up because the petitioner was a in-service candidate and as per the Selection Committee, clause 4.4.5 of the UGC Regulations, 2010 was not applicable in case of the petitioner and due to non fulfillment of the eligibility/experience, the petitioner was not eligible for direct recruitment. The respondents further submitted that the Selection Committee opined that the petitioner be recommended to be given effect of seniority from the date he joined as Professor in the Business School, however, the financial and service benefits have been recommended to be given to the petitioner as per norms. The respondents have admitted that Dr. Alka Sharma came to be promoted as Professor in the month of January 2012 w.e.f. 23.03.2010 on the basis of her eligibility and submission of her application in this behalf. The respondents have stated that pursuant to the communication issued by respondent No. 4, the petitioner was held not entitled to the promotion as Professor w.e.f. his attaining eligibility as the petitioner had applied for promotion under Career Advancement Scheme after the delay of six years.

11. University Grant Commission, respondent No. 4 has also filed the response, in which it is stated that the Regulations issued by the respondent No. 4 are mandatory in nature and clause 6.3.1 of the UGC Regulations, 2010 is also mandatory and it is mandatory for the incumbent who wishes to be considered for promotion under Career Advancement Scheme to submit in writing to the University/college with three months in advance of the due date.

12. The petitioner has also filed the supplementary affidavit in which it is stated that during the pendency of the instant writ petition, the petitioner has come across a communication dated 12.01.2018 addressed by the Registrar, University of Jammu to the Under Secretary to Governor, Secretariat, Raj Bhawan, Jammu through the medium of which the Secretariat has been conveyed that in past also, cases of some Assistant Professors who had applied at a later stage than the prescribed period for applying under Career Advancement Scheme for promotion to the next higher stage have been approved and accepted and accordingly a request has been made to reconsider the decision already communicated to the University vide communication dated 14.03.2017 and a request has been made to accord an approval to the recommendations made by the Selection Committee for promotion of the petitioner as Professor w.e.f. 04.08.2009 i.e. the date of his eligibility to the cadre.

13. The petitioner has also placed on record the orders regarding the sanctioning of promotion in favour of the various persons under Career Advancement Scheme under the UGC Regulations, 2010 whom the petitioner claims that they had applied for promotion after due date of three months and the said orders include the sanction of promotion with retrospective effect.

14. Pursuant to the order dated 28.09.2021, the respondent No. 1 has filed the affidavit in which it is admitted by the respondent No. 1 that the petitioner acquired eligibility for becoming Professor in the year, 2009 under the Career Advancement Scheme in terms of the UGC Regulations, 2010 and as the petitioner did not apply in time as stipulated in Clause 6.3.1. of the UGC Regulations, 2010, his case could not be presented before the Selection Committee and in the meantime, other eligible Associate Professors applied for their consideration and their cases were placed before the Selection Committee from time and time and they have been promoted as Professor under Career Advancement Scheme and further that none of them has been arrayed as party respondent by the petitioner in the present petition. It is further admitted that the Selection Committee on 06.05.2016 recommended that the Chancellor may kindly approve the recommendations made by the Selection Committee for the promotion of Dr. Rajender Mishra, petitioner herein as Professor in the Business School under Career Advancement Scheme under rules with effect from 04.08.2009 i.e. the date of his eligibility to the cadre. The respondent No. 1 has also admitted that Dr. Romesh Kumar was promoted as Associate Professor in the year, 2009 and was due for promotion as Professor in the year, 2012. Dr. Romesh Kumar applied for promotion under Career Advancement Scheme on 29.08.2014 and the Selection Committee recommended his promotion with effect from date of his eligibility to the cadre. His case was sent for approval and after obtaining approval, promotion order has been issued vide order dated 20.12.2018. A perusal of order dated 20.12.2018 reveals that Dr. Romesh Kumar has been granted promotion with effect from 24.10.2012.

15. Mr. Ankur Sharma, learned counsel for the petitioner vehemently submitted that the respondent No. 1 has admitted that the petitioner has acquired eligibility for promotion as Professor with effect from 04.08.2009 and as per Clause 6.3.1 of the UGC Regulations, 2010, the petitioner was entitled to promotion from the date of his eligibility i.e. with effect from 04.08.2009. He further submitted that there was no stipulation in the UGC Regulations, 2010 that provided any limitation for the candidates, who had already acquired the eligibility for promotion prior to the coming into force of the said Regulations as such the case of the petitioner has been wrongly considered and rejected by the respondents. Mr. Sharma further argued that earlier also numbers of candidates have been granted promotions with effect from the date of their eligibility notwithstanding the fact that they had not applied within the period of limitation as prescribed under rules. He laid much stress on the promotion order that was issued in favour of Dr. Romesh Kumar. He further submitted that even Dr Alka Sharma was much junior to him and she too did not apply within three months.

16. Per contra, Mr. Ajay Abrol, learned counsel appearing for the respondents- University has vehemently submitted that the case of the petitioner was recommended by the Selection Committee, however, the office of the Chancellor did not approve the same on the basis of the communication dated 06.03.2017 and further that the candidates, who have been promoted in the intervening period have not been arrayed as party.

17. Mr. Jatinder Choudhary, learned counsel appearing for respondent No. 4- University Grant Commission has argued that as per the UGC Regulations, 2010, the teacher who wishes to be considered for promotion under Career Advancement Scheme, may submit in writing to the University/College, with three months in advance of the due date and further that the reasoning given by the petitioner for delay of six years is not tenable as it was mandatory on his part to apply for promotion within prescribed time frame.

18. With the consent of the parties the matter was heard finally heard. Perused the record as well.

19. The only issues that arise for the consideration of this court is as to whether the petitioner is entitled to promotion with effect from 04.08.2009 ?

20. In order to appreciate the present controversy, it is apt to take note of the Clause 6.3.1 of the UGC Regulations, 2010 dated 30.06.2010 and the same are reproduced as under:

“A teacher who wishes to be considered for promotion under CAS may submit in writing to the university/college, with three months in advance of the due date, that he/she fulfils all qualifications under CAS and submit to the university/college the Performance Based Appraisal System proforma as evolved by the concerned university duly supported by all credentials as per the API guidelines set out in these Regulations. In order to avoid delays in holding Selection Committees meetings in various positions under CAS, the University/College should immediately initiate the process of screening/selection, and shall complete the process within six months from the date of application. Further, in order to avoid any hardships, candidates who fulfill all other criteria mentioned in these Regulations, as on 31 December, 2008 and till the date on which this Regulation is notified, can be considered for promotion from the date, on or after 31 December, 2008, on which they fulfill these eligibility conditions, provided as mentioned above.”

21. The Regulation 6.3.1 envisages two situations. The first part of this Regulation is applicable to a candidate who earns eligibility to promotion after coming into force of these Regulations and in such case, he/she is under obligation to apply three months prior to the due date, for consideration of her/his case under Career Advancement Scheme. The University Grant Commission Regulations (Minimum Qualifications for appointment of Teachers and other Academic Staff in Universities and Colleges and other measures for the Maintenance of Standards in Higher Education) Regulations, 2010 came to be notified on 30.06.2010. The above mentioned Regulations provide for that the teacher who wishes to be considered for promotion under the Career Advancement Scheme may submit in writing to the University/college with three months in advance of the due date, that he/she fulfills all qualifications under the Career Advancement Scheme and submit to the University/college the Performance Based Appraisal System performa as evolved by the concerned University duly supported by all credentials as per the API guidelines set out in these Regulations. Further in order to avoid delay in holding the Selection Committee meetings, the university/college has been called upon to initiate the process of screening/selection and complete the same within six months from the date of application.

22. The second part of the Regulation 6.3.1 provides that candidates who fulfilled all other criteria mentioned in these Regulations as on 31.12.2008 and till date these Regulations are notified can be considered for promotion from the date on or after 31.12.2008 on which they fulfill these eligibility conditions provided as mentioned above. This part of the Regulations is applicable to those candidates who have already attained the eligibility for being considered for promotion under the Career Advancement Scheme as on 31.12.2008 or before these Regulations are notified.

23. The expression “due date” used in the Regulation (supra) is nowhere defined explicitly but the tone and tenor of the first part of the Regulation reveals that the due date would mean the date of acquisition of eligibility. This is substantiated by the circular dated 24.03.2017 (Annexure-W to the writ petition) issued by the respondent No:1 that if the candidate applies later than his/her eligibility date, no claim for retrospective promotion/placement under CAS shall be entertained.

24. Admittedly these regulations were notified on 30.06.2010. There is no quarrel between the parties that the petitioner earned eligibility on 04.08.2009 whereas the present Regulations were notified on 30.06.2010. The period of limitation of three months as provided in the first part of the Clause 6.3.1. (supra) is applicable to those candidates who earned eligibility after 31.12.2008 or the notification of these Regulations. Thus the candidates who attains eligibility after the notification of regulations have to apply for promotion with three months in advance of the due date whereas in case of candidates who have already attained the eligibility prior to the enforcement of these Regulations, the limitation of three months become meaningless. In case the intention of the UGC had been to provide limitation for even those candidates who had acquired the eligibility prior to the notification of the regulations, then UGC would have specifically provided the limitation of three months even for those candidates as well.

25. There is another aspect of the matter as well that so far as the communication dated 06.03.2017 addressed by the respondent No. 4 to respondent No. 3 is concerned it is evident that no reason has been assigned as to why the reason for the delay mentioned was not satisfactory. The petitioner earlier applied for post of professor under direct recruitment but for one reason or other the petitioner could not succeed. The petitioner applied for post of professor under direct recruitment as the higher grade was attached to the said post vis--vis post of professor under CAS promotion. It was only when the petitioner was not found eligible for the post of professor under direct recruitment as the petitioner was already in service, then the petitioner opted for the post of professor under these regulations. So it cannot be said the

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explanation of delay was not satisfactory. 26. From the record, it is also evident that the respondent No. 1 has already considered the case of a similarly situated persons including Dr. Romesh Kumar who earned eligibility to the cadre in the year, 2012 and he applied for the scheme on 29.08.2014 and the retrospective benefit of promotion was granted to him when he acquired the eligibility to the cadre. In the case of Dr. Romesh Kumar though he earned eligibility after the enforcement of the UGC Regulations, 2010, but even the mandatory provision of three months was not taken into consideration by the respondent No. 1 and promotion was granted to him with retrospective effect. Even Dr Alka Sharma was granted promotion in the year 2012 with effect from her acquiring eligibility and in the relevant column regarding the date of application in the information furnished under RTI by the University of Jammu, the word “nil” has been mentioned. More so, a perusal of the letter dated 12.01.2018 addressed by the respondents 1-3 to the office of the Chancellor reveals that in the past also some teachers had applied later than the prescribed period for applying under Career Advancement Scheme for promotion to the next higher stage have been approved and accepted and request was made for approval of the recommendation of the Selection Committee to grant the benefit of the promotion to the petitioner with effect from 04.08.2009. So there is clear admission on the part of respondent Nos. 1 to 3 that in the past also the candidates who earned eligibility after the enforcement of these Regulations were granted the benefit of retrospective promotion even when they had applied after the stipulated period of three months. Even after the claim of the petitioner was rejected, Dr. Romesh Kumar has been granted promotion with effect from 24.10.2012 despite the fact that he applied on 29.08.2014. The petitioner cannot be discriminated against and as such on this score also the rejection of the claim of the petitioner is illegal, unwarranted and unjustified. 27. In view of the above discussion, this court is of the considered opinion that the respondents have wrongly rejected the claim of the petitioner for his promotion with retrospective effect i.e. with effect from 04.08.2009, as such, communication dated 06.03.2017 issued by the respondent No. 4 to respondent No. 3 and the consequential orders/communications of the respondents-University dated 14.03.2017 and 30.05.2017 are quashed. The respondent Nos. 1 to 3 are further directed to consider the claim of the petitioner for grant of the promotion to the post of Professor under the Career Advancement Scheme with effect from 04.08.2009 afresh and in the event of grant of promotion w.e.f 04.08.2009, he be put at the relevant place in the seniority list after notice to the effected candidates who have already been promoted under the CAS in the intervening period. The requisite exercise be done within three months from the date copy of this order is furnished to the respondent Nos. 1 to 3.
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