* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 8719/2005 DR.SHAHID UMAR ..... Petitioner Through Mr. P. Niroop, Mr. Manoj C. Mishra & Mr. Chandan Kumar, Advocates. versus JAMIA HAMDARD (HAMDARD UNIVERS ..... Respondent Through Mr. V.K. Rao, Advocate for the respondent No. 1. Mr. Amitesh Kumar, Advocate for UGC. Mr. S.K. Das, Advocate for the applicant in CM No. 16960/2007. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA O R D E R % 12.05.2008 1. The petitioner Dr. Shahid Umar has impugned order dated 14th October, 2004 communicating to him the decision taken by the Executive Council on 20th September, 2004 cancelling his promotion to the post of Reader under the Career Advancement Scheme. The impugned order mentions that the petitioner has been re-assessed for promotion as a Lecturer in Senior Scale. 2. Learned counsel for the petitioner submits that there is violation of the bye laws approved by the Executive Council on 30th March, 2002 inasmuch as the Chancellor did not express his disapproval in respect of the appointment of the petitioner as a Lecturer (Reader) and communicate his views in writing within a period of ten days. 3. The petitioner was appointed to the post of Lecturer in the Pay Scale of Rs.8000-275-13500 by letter dated 15th April, 1999. Prior to the said date, the petitioner was working as a Plant Physiologist with the Potash Research Institute of India, Gurgaon. The said institute is a registered society, recognized by the Ministry of Science and Technology, Government of India under the scheme of recognition of Scientific and Industrial Research Organisation (SIRO). 4. To do away with the problem of stagnation, the respondent university with the approval of University Grants Commission has framed Career Advancement Scheme dated 31st January, 2000. The two relevant clauses of the said Scheme read as under:- “01. LECTURER (SENIOR SCALE): A Lecturer will be eligible for placement in a senior scale through a procedure of selection, if she/he has: (i) Completed 6 years of service after regular appointment with relaxation of one year and two years, respectively, for those with M.Phil and Ph.D. (ii) Participated in one orientation course and one refresher course of approved duration or engaged in other appropriate continuing education programme of comparable quality as may be specified or approved by the University Grants Commission. (Those with Ph.D. degree would be exempted from one refresher course). (iii) Consistently satisfactory performance appraisal reports. 03. READER (PROMOTION): A Lecturer in the Senior Scale will be eligible for promotion to the post of a Reader if she/he has: (i) Completed 5 years of service in the Senior Scale (ii) Obtained a Ph.D. degree or has equivalent published work; (iii) Made some mark in the areas of scholarship and research evidenced e.g. by self-assessment, reports of referees, quality publications, contribution to educational innovation, design of new courses and curricula and extension activities. (iv) After placement in the Senior Scale participated in two refresher courses/summer institutes of approved duration, or engaged in other appropriate continuing education programmes of comparable quality as may be specified or approved by the University Grants Commission, and (v) Possesses consistently good performance appraisal reports. Promotion to the post of Reader will be through a process selection by a Selection Committee to be set up under Statutes/Ordinances of the concerned University or other similar Committees set up by the appointing authorities.” 5. As per Clause 01 a Lecturer is eligible for placement in Senior Scale after he/she has completed six years of service after regular appointment but relaxation of one year or two years can be granted to those who have done M.Phil/Ph.D. respectively. In addition to the above eligibility condition, a Lecturer should also satisfy requirements prescribed in conditions (ii) and (iii). 6. For promotion to the post of Reader, a Lecturer should be in senior scale and should have completed five years of service in senior scale. Clause 03.(i) is clear and unequivocal. The said eligibility criteria and condition of five years in service in senior scale must be fulfilled before a Lecturer can be appointed as Reader under the said Scheme. In addition, conditions mentioned in Clauses (ii) to (v) should be satisfied. The conditions in Clauses (i) to (v) are cumulative and not in alternative. 7. As already stated above, the petitioner was appointed as a Lecturer in terms of the letter of appointment dated 15th April, 1999 in the Pay Scale of Rs.8000-275-13500. The appointment was not made as Lecturer (Senior Scale). The petitioner after completing four years of service after regular appointment was entitled to be considered for Lecturer (Senior Scale). The petitioner is to be considered for promotion as a Reader after completing five years of service in the Senior Scale but not before. 8. It is an admitted position that the petitioner had not worked and completed five years service in Senior Scale, when the Selection Committee in its’ recommendation dated 2nd April, 2004 had recommended promotion of Dr. Shahid Umar as Lecturer (Selection Grade)/Reader. A perusal of the said minutes indicate that the petitioner was found fit by the Selection Committee for promotion as Lecturer (Selection Grade)/Reader. The promotion recommended by the Selection Committee was in the alternative. It appears that thereafter the Registrar issued letter dated 20th April, 2004 stating that the petitioner has been promoted as a Reader in the Pay Scale of Rs.12000-420-18300 under the Career Advancement Scheme with effect from 2nd April, 2004. It is also stated that the said recommendation of the Selection Committee was approved by the Executive Council in it’s meeting held on 17th April, 2004. 9. The Chancellor examined the appointment of the petitioner as a Reader under the Career Advancement Scheme as eligibility criteria was not satisfied in the present case. Thereafter by letter dated 13th September, 2004, the Chancellor referred to the guidelines pertaining to promotion as a Reader under the Career Advancement Scheme and the Clause 3, which stipulates that a Lecturer in Senior Scale will be eligible for promotion to the post of Reader if he/she has five years of service in the Senior Scale. The Chancellor’s views that the petitioner does not fulfil the eligibility criteria, were communicated to the Executive Council. The Executive Council examined the matter once again and has accepted the position that the petitioner does not fulfill the eligibility criteria and has agreed that the petitioner could not have been appointed as a Reader under the Career Advancement Scheme. The said promotion granted to the petitioner was directed to be cancelled and it was resolved that the petitioner shall be re-assessed for promotion as a Lecturer in the Senior Scale. 10. Having considered the guidelines mentioned above, it is apparent that the petitioner did not fulfil the requisite conditions prescribed in Clause 03 for promotion as a Reader. Only Lecturers who have worked in the Senior Scale are eligible for promotion as a Reader and that too after having completed five years of service in the Senior Grade. The petitioner admittedly does not meet the said criteria. 11. The contention raised by the learned counsel for the petitioner is that the Vice-Chancellor had delayed and had not send his views within ten days in terms of bye laws approved by the Executive Council on 30th March, 2002. He makes specific reference to bye laws (iv) and (v) for exercise of power to examine/annul any resolution of the authority of the Jamia Hamdard Chancellor. “(iv) If the Chancellor is of the view that any resolution passed by any such authority of Jamia Hamdard i.e. the Executive Council, Finance Committee, and Planning and Monitoring Board of Jamia Hamdard is not in conformity with the Memorandum of Association or Bye-laws or is repugnant to the objects and interest of the Jamia, he shall communicate his views in writing within the specified period of 10 days to the Vice-Chancellor, who shall communicate such views to the relevant authority of Jamia for its consideration. If the relevant authority of Jamia agrees with the views of the Chancellor, the decision taken will be modified to that extent and will take effect in that form. (v) If the relevant authority of Jamia does not agree with the views of the Chancellor, the latter will consider the reasons cited by that authority in support of its inability to agree and either accept them or cause a notice to the Registrar calling upon him to show cause why the decision taken by the relevant authority of Jamia should not be annulled.” 12. The bye laws no doubt prescribe the time limit of ten days but it cannot be said that non-adherence to the prescribed time limit will result in validation of a wrong appointment/promotion contrary to the specific terms and conditions mentioned in the Career Advancement Scheme. In fact, in the present case the Executive Council itself has accepted it’s mistake and error in promoting the petitioner directly to the post of a Reader though he was not eligible and could not be appointed as a Reader. I may also note that in some cases it has been held that time limit may not be sacrosanct. (Refer, Union of India versus R.S. Saini reported in (1991) Suppl 2 SCC 151 and T.V. Usman versus Food Inspector, Tellicherry Municipality reported in (1994) 1 SCC 754). 13. After the Executive Council’s meeting on 20th September, 2004, whereby the petitioner’s earlier appointment as a Reader was cancelled, a Committee was constituted by the Vice-Chancellor to look into the matter to re-examine whether the petitioner is entitled to any benefit of past service as a Plant Physiologist at Potash Research Institute, Gurgaon. The said Committee has submitted a detailed report dated 10th March, 2005. It is pointed out that the Pay Scale of the petitioner as a Plant Physiologist was Rs.7500-250-12500, which was less than the Pay Scale of a Lecturer, which is Rs.8000-275-13500. Accordingly, the said Committee after examining the facts had recommended that the petitioner should be placed in the Senior Scale with effect from 4th May, 2003 on the recommendation of the Selection Committee. 14. In the present case, the Executive Council has rectified a gross and patent error in granting promotion to the petitioner to the grade of Reader. Error could have been pointed out by the Chancellor or any other third person also. The situation may have been different in case the Executive Council had not agreed with the Chancellor. A wrong done will not confer a vested right. A mistake and error should be rectified and not perpetuated and allowed to continue. 15. In these circumstances, I do not find any error in the order passed by the Executive Council and the impugned order holding that the petitioner’s promotion as a Reader under the Career Advancement Scheme is wrong and cancelling the same is justified and correct. 16. However, I feel that the respondents should not be permitted and allowed to recover the excess payment made to the petitioner for the period from 20th April, 2004 till 20th September, 2004. The Executive Council had passed a resolution promoting the petitioner as a Reader. It is not the case of the respondents that the petitioner had made any misrepresentation or given false statement to secure the said promotion. At this stage to ask the petitioner to refund any amount will cause inconvenience and harassment. The petitioner had worked and performed his duties as a Reader. 17. The petitioner was appointed as a Lecturer vide letter of offer dated 15th April, 1999 and he joined the said post on 4th May, 1999. He was eligible and entitled to be considered for promotion to the post of Lecturer (Senior Scale) on completion of four years by giving him relaxation of two years as he admittedly holds a Ph.D. degree. It is obvious that the eligibility conditions mentioned in Clause 01 for promotion as Lecturer (Senior Scale) are less stringent than the eligibility criteria mentioned in Clause 03 for promotion to the post of Reader. The Selection Committee in its’ meeting held on 2nd April, 2004 had found the petitioner eligible and meeting the conditions specified for promotion to the post of Lecturer Selection Grade and Reader. The respondents have not alleged or stated that the petitioner does not meet the eligibility criteria for promotion to the post of Lecturer (Senior Scale) as quoted above. The respondents are accordingly directed to consider the case of the petitioner for promotion as a Lecturer (Senior Scale) with effect from 2nd April, 2004, depending upon vacancy. The requirement to file any application will be dispensed with in the present case as the petitioner was earlier held eligible and entitled to promotion as a Reader, but subsequently the said appointment has been cancelled. The aforesaid exercise will be completed within a period of two months. In case the petitioner is entitled to payment of any arrears, the same shall be also paid within one month after the exercise is complete. The petitioner will also furnish and provide all details and particulars as may be required by the respondents for processing the case of the petitioner for being posted as a Lecturer in the Senior Scale. Whenever any written request is made, the petitioner will immediately comply with the same. 18. With the above observations and directions, the writ petition is disposed of. Consequently all pending applications are also disposed of. No costs. SANJIV KHANNA, J. MAY 12, 2008 VKR/P