THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NOS.10, 559, 1141 AND 2150 OF 2003 AND 515 OF 2004 DATED 25TH NOVEMBER, 2011 BETWEEN R.Bener Raj and others …Appellants And Government of Andhra Pradesh, Rep. by its Principal Secretary to Government, Agrl. & Coop. Department, Secretariat, Hyderabad and others. …Respondents THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NOS.10, 559, 1141 & 2150 OF 2003 AND 515 OF 2004 COMMON JUDGMENT (Sri Justice Sanjay Kumar) Merit promotions effected over a decade ago by the Acharya N.G. Ranga Agricultural University are in issue. By common order dated 11.07.2002, a learned single Judge upheld these promotions and dismissed Writ Petition Nos.2064, 3915, 4385, 5311 and 11163 of 2000. Aggrieved thereby, the petitioners in W.P.Nos.2064, 4385 and 5311 of 2000 filed Writ Appeal Nos.10 and 2150 of 2003 and 515 of 2004 respectively. By separate individual orders dated 10.07.2002, the learned Judge also dismissed W.P.Nos.10044 of 2000 and 11555 of 1999 which were filed on similar lines. Aggrieved thereby, the petitioners in W.P.Nos.10044 of 2000 and 11555 of 1999 filed W.A.Nos.559 and 1141 of 2003 respectively. The common refrain of the appellants in these cases is that the Acharya N.G. Ranga Agricultural University (for brevity, ‘the University’) did not effect merit promotions in accordance with the applicable norms, whereby they were unjustly denied consideration and promotion. The University Grants Commission (UGC) propounded a merit promotion scheme for University appointed teachers in the year 1983. The Indian Council of Agricultural Research (ICAR), New Delhi, adopted the guidelines specified by the UGC in this regard and approved the proposal for implementation of a merit promotion scheme in Agricultural Universities under letter dated 11.06.1984, subject to the modification that the teacher aspiring for eligibility under the scheme should have put in at least 10 years of continuous service (instead of the 8 years specified in the UGC guidelines) in the cadre of which at least 5 years (instead of the 4 years specified by the UGC) should be in the institution where he/she was being considered for such merit promotion. But for this modification, all other terms and conditions remained the same. This merit promotion scheme for teachers in Agricultural Universities set out its objectives as under: “I. OBJECTIVES: 1. To recognize the outstanding work done by the University teachers in the field of teaching and Research in Agriculture and allied sciences by evaluating their work through the experts in the concerned areas. 2. To provide opportunities for professional advancement to teachers who merit academic recognition, on a competitive basis. The scheme therefore, may be appropriately named as “Merit Promotion Scheme for teachers in Agricultural Universities”. This would be in the nature of a “flexible complementing Scheme” wherein no additional posts are created, and the existing persons on the basis of critical assessment are promoted to the next higher level and the position held by such incumbents as personal to them, and no resultant vacancy is required to be filled. Such a Scheme would considerably encourage the teachers to engage in advance teaching and research in their respective field and encourage them to make distinct contributions which would merit recognition and promotion.” The guidelines provided for the method of implementation of the scheme and the relevant clauses thereof read as under: “II. METHOD OF IMPLEMENTATION: 1. Teachers in the Agricultural Universities engaged in advanced teaching and researching and whose contribution and achievements are such as to merit recognition, may be considered for merit promotion in the first instance, after completing eight years of continuous service in their respective cadre, (sic, ten years) of which at least four years (sic, five years) should be in the institution/department where he/she is being considered for such merit promotion through assessment. 2. ……… 3. ……… 4.(a) While the final selection of persons to be promoted can be made by the University in accordance with its normal procedure, it would be necessary to refer their work (which include research publications, books review, curriculum development, teaching aids developed, innovation in teaching methods and equipment developed etc.) presented by individual teachers to at least three referees in the subject/discipline concerned. The referees are to be selected out of a panel of the names set up according to the procedure presented by the University for selection committee. (b) The evaluation reports of these referees should be kept confidential and should be made available to the selection committee. (c) The merit promotion be given to a teacher only on recommendation of the selection committee constituted after it has given due consideration to the opinion of the referees. (d) There should be at least two outside experts on the selection committee in case of promotion to associate professor/ reader and three outside experts for promotion to professors. ( e ) The post of an associate professor/reader be given to an Assistant Professor/Lecturer or the position of a Professor be given to an associate professor/reader, through merit promotion, would be personal to the concerned incumbent. (f) The main criteria for promotion under this scheme would be the merit of work as defined above and not seniority of the teachers. 5. Not more than 33% of the number of total permanent position of assistant professor/lecturers or associate professors/Readers within a department may hold such merit promotions to next higher level at any given time. The persons holding such merit promotions would not count for determining the total posts in the cadre of associate professors/readers for purposes of merit promotion to professors. It would be desirable for a faculty/ Department not to fully utilize the merit promotion scheme at one time, but to phase it out so that the full quota could be reached in the plan period. 6. Additional funds required to implement this scheme in the Agricultural Universities may be provided by the Council as plan assistance on the condition that after the Council assistance ceases, the University/State Government would treat this as committed expenditure. 7. ……… 8. ……… 9. ……… 10. Any scheme which the University may already have for merit personal promotion and persons already promoted under such a scheme prior to the present scheme of the Council becoming effective will not qualify for I.C.A.R. assistance. 11. ………” Pursuant to the aforestated guidelines communicated to it, the University issued Regulations under proceedings dated 18.10.1984 titled ‘the Andhra Pradesh Agricultural University Teachers (Merit Promotions) Regulations, 1984. These Regulations were ostensibly made in exercise of the powers conferred by Section 40(1) of the Acharya N.G. Ranga Agricultural University Act, 1963 (for brevity, ‘the Act of 1963’). Though the Regulations state to the effect that the prior approval of the Government was obtained, the same was disputed by the Government of Andhra Pradesh before the Supreme Court. Be that as it may. Under these Regulations, the University came up with a different procedure of awarding marks for selection of candidates for merit promotion. For promotion of Associate Professors as Professors, the marks were to be awarded under the following heads: Qualifications - 20 marks Service - 30 marks Publications - 20 marks Performance - 30 marks ------ Total - 100 marks ------ In so far as qualifications are concerned, marks were to be allotted on the following parameters: 1) Bachelor’s Degree – I Class - 5 Marks II Class - 3 Marks III Class - 1 Mark 2) Master’s Degree – I Class - 10 Marks II Class - 6 Marks 3) Ph.D. Degree - 5 Marks Under Regulation 4, the University prescribed as under: “4. While a teacher for promotion to the next higher post under Merit Promotion scheme must possess the educational and other qualifications prescribed for higher post from time to time, an Assoc. Professor who does not have Ph.D. Degree and is not less than 54 years of age as on first-July of that year and who has to his credit outstanding research publications which merit consideration of his promotion to the next higher post may also be considered. However, this concession to the cadre of Assoc. Professors shall cease at the end of September, 1987.” As regards the service component, the University Regulations prescribed that 1 mark would be awarded for each year of service. It is the case of the University that it requested the Government’s approval under its letter dated 09.09.1983 for implementing the merit promotion scheme. The Government of Andhra Pradesh approved the scheme for the academic years 1985- 86, 1986-87, 1987-88 and 1988-89 under separate individual orders. However, as an objection was raised by the Audit Department as to the absence of sanction under Section 35(B) of the Act of 1963, which mandated the prior written approval of the Government, the Government issued G.O.Ms.No.628, Food and Agriculture (Agri.III) Department, dated 28.09.1990, whereby it accorded sanction under Section 35(B) of the Act of 1963 for implementing the scheme to the teachers belonging to the cadres of Assistant Professors and Associate Professors subject to the conditions stipulated therein. One such condition was that the implementation of the scheme should be strictly in accordance with the UGC pattern as modified by the ICAR and another was to the effect that the scheme should cease to operate after 17.06.1987. Merit promotions under the scheme were accordingly stopped after 13.06.1987. While so, it appears that the Government of Andhra Pradesh, having noticed several irregularities committed by the University in implementing the merit promotion scheme, addressed letter dated 19.09.1995 to the Registrar of the University pointing out some of the irregularities and directing the University to take action as indicated therein. In the meanwhile, 31 merit promotion aspirants approached this Court by way of W.P.No.2177 of 1995 assailing the inaction of the University in finalizing their merit promotions. The said writ petition was disposed of by order dated 13.03.1995 directing the Government of Andhra Pradesh to consider the matter and issue necessary directions to the University within a timeframe; thereupon the University was directed to conduct interviews for evaluating the performance of the petitioners with regard to their entitlement under the scheme and finalise their selections. This order was confirmed in appeal by a Division Bench of this Court by order dated 27.07.1995 in W.A.No.771 of 1995 on the basis of the recommendations of a House Committee constituted by the Government, that the merit promotion scheme should be continued. Aggrieved thereby, the Government of Andhra Pradesh approached the Supreme Court by way of Civil Appeal No.7707 of 1997. The said appeal was disposed of by the Supreme Court by order dated 13.11.1997, which stated as under: “We are unable to uphold the direction given by the High Court to the appellant to issue orders in conformity with the report of the House Committee. Since the State Government is not bound to accept the recommendations of the House Committee, the High Court could not issue a writ or direction in exercise of its jurisdiction under Article 226 of the Constitution directing the appellant to pass an order giving effect to the recommendations of the House Committee. It is open to the State Government either to accept or not to accept the recommendations of the House Committee. But, at the same time, we are of the view that the respondents can make a representation to the State Government on the basis of the resolution dated November 20, 1993 passed by the University and point out that the Merit Promotion Scheme is still in operation and has not ceased to be in operation in 1987. If such a representation is made by the respondents, the competent authority shall consider the same and pass appropriate order on the said representation keeping in view the law laid down by this Court in Dr.Rashmi Srivastava (supra) as well as the laws governing the University. Such order shall be passed within a period of three months of the submission of the representation. The appeal is disposed of accordingly. No order as to costs.” Pursuant to the above direction the Government of Andhra Pradesh, acting upon various representations submitted to it, passed orders in G.O.Ms.No.82, Agriculture and Co-operation (Agri.III) Department, dated 05.05.1998, extending the merit promotion scheme as per the guidelines prescribed by the ICAR. Reference was made to the observations of the Supreme Court that the merit promotions should be regulated as per the law laid down by it in DR.RASHMI SRIVASTAVA V/s. VIKRAM UNIVERSITY. The Government accordingly directed the Registrar of the University to pass appropriate orders while granting merit promotions strictly as per the above decided case law. Thereafter, under G.O.Rt.No.589, Education (UEI-1) Department, dated 05.05.1998, the cut-off date for effecting merit promotions under the scheme which was fixed as 31.12.1993 vide G.O.Ms.No.242 dated 01.08.1994 was extended upto 31.12.1995. The University accordingly issued Memo dated 19.06.1998 indicating the names of Associate Professors who were tentatively considered eligible for merit promotions between 1987 and 1995. Pertinent to note, the appellants and most of the others who were the proposed beneficiaries of this extended scheme had retired from active service by then. The appellant in W.A.No.10 of 2003 found mention at Sl.No.1 under the discipline of Plant Pathology; the appellant in W.A.No.559 of 2003 found place at Sl.No.2 in the Soil Science and Agricultural Chemistry Group; the surviving appellant in W.A.No.1141 of 2003 was named at Sl.No.6 under the caption ‘Extension Education’; the appellant in W.A.No.2150 of 2003 found mention at Sl.No.9 in the discipline pertaining to Soil Science and Agricultural Chemistry Group; and the appellants in W.A.No.515 of 2004 belonging to the same discipline were named at Sl.Nos.4, 5 and 8. The candidature of the appellants in W.A.Nos.10, 559 and 1141 of 2003 was however not considered at all on the ground that they did not possess the prescribed qualification of Ph.D. The appellants in W.A.Nos.2150 of 2003 and 515 of 2004 were considered but their candidature was rejected and others were preferred. This being the cause for grievance, the writ petitions came to be filed before this Court. Perusal of the common order dated 11.07.2002 passed by the learned Judge in the batch of cases reflects that three issues were considered therein. The first issue was with regard to the reference of the candidates’ research work to three referees for evaluation. The second was with regard to only candidates borne out on the cadre being considered for merit promotion and the third was in connection with the candidature of duly appointed Professors through regular recruitment being considered once again for merit promotion thereby expanding the zone of consideration to the detriment of others as yet aspiring for the post. With regard to the first issue, the learned Judge was of the opinion that the failure on the part of the University in getting the research work assessed through three referees as posited under the Regulations could not be said to be fatal as ultimately, it was the selection committee which had to finalise the selection. On facts, the learned Judge however accepted the University’s stand that all the candidates’ research work had, in fact, been submitted to three referees for assessment as required. Apropos the second aspect, the learned Judge was of the opinion that the Regulations had been amended under the subsequent proceedings dated 30.09.1985, 14.11.1985 and 08.12.1985 whereby the word ‘cadre’ was substituted with the word ‘category’. Basing on this premise, the learned Judge concluded that those not borne out on the cadre, being merit promotee Associate Professors, also became eligible for consideration under the scheme. As regards the third issue, the learned Judge was of the opinion that the Regulations did not place any restriction upon considering an already appointed/promoted teacher through regular recruitment for merit promotion. Further, the learned Judge, taking note of the long lapse of years owing to the litigation whereby most of the teachers had moved on in their careers, was of the opinion that denying their candidature for merit promotion under the scheme would amount to punishing the meritorious. The learned Judge therefore opined that the University had not violated the norms in effecting promotions and accordingly dismissed the batch of cases. In the separate order dated 10.07.2002 passed in W.P.No.10044 of 2000, the learned Judge repelled the plea of the petitioner therein that he was eligible to be considered notwithstanding the fact that he did not hold a Ph.D. Degree, relying upon Regulation 4 of the University Regulations. Further, as the said qualification was necessary for direct recruitment to the post of Professor, the learned Judge was of the opinion that rejection of the petitioner’s case by the University was not illegal and accordingly dismissed the said writ petition. W.P.No.11555 of 1999 was dismissed by the learned Judge on 10.07.2002 following the Judgment rendered in W.P.No.10044 of 2000, negating the contention of the petitioner therein that the qualification of Ph.D. prescribed under the University Regulations was contrary to the Act of 1963 and also G.O.Ms.No.82 dated 05.05.1998. Pertinent to note, though the appellant in W.A.No.10 of 2003 had also specifically raised the issue that the qualification of Ph.D. insisted upon by the University was opposed to the ICAR guidelines for implementing the merit promotion scheme, the common order dated 11.07.2002 rendered in the batch of cases including the writ petition filed by the appellant in W.A.No.10 of 2003 did not address this aspect. His further contention that he had been completely overlooked and was not even invited for the interview also did not figure for consideration by the learned Judge. It may well be that the learned Judge assumed that the pleadings in all the cases were similar and in this process the individual case of the appellant in W.A.No.10 of 2003 was overlooked. The prejudice caused to him by his case being clubbed with the other cases and not being individually considered on its own merits is however manifest. It is pertinent to note that the appellant in W.A.No.559 of 2003 had earlier filed W.P.No.23505 of 1998 before this Court wherein he challenged the University Regulations of 1984, amongst other proceedings. The said writ petition was disposed of by a learned Judge of this Court by order dated 02.04.1999 directing the University to consider his representation within a timeframe. Alleging disobedience to this order, he filed Contempt Case No.226 of 2000. During the pendency thereof, he was furnished a copy of the Memo dated 22.09.1999, whereby the University informed him that he did not fulfill the qualifications for the post of Professor as he did not possess a Ph.D. Degree and accordingly, his case was not considered for merit promotion even after 1987. The contempt case was thereupon closed by order dated 15.03.2000 leaving it open to him to assail the validity of the Memo dated 22.09.1999. Though in the first instance, in W.P.No.10044 of 2000 a challenge was laid by him only to the proceedings dated 15.03.2000 whereby the University granted merit promotions to respondents 3 to 10 therein, the prayer was amended thereafter as per Court order dated 19.06.2000 and a challenge was also laid against the Memo dated 22.09.1999. The learned Judge, while dismissing W.P.No.10044 of 2000, held against the petitioner therein on the ground that he had failed to challenge the University Regulations and more specifically Regulation 4, which had been pressed into service for rejecting his candidature. The appellant in W.A.No.1141 of 2003 had however challenged the University Regulations of 1984 in his writ petition, W.P.No.11555 of 1999, on the ground that the same were in violation of the Act of 1963 and G.O.Ms.No.82 dated 05.05.1998. While dismissing W.P.No.11555 of 1999, the learned Judge opined that it was not demonstrated as to how the qualifications prescribed were contrary to law and held that the relief claimed touching the validity of the Regulations could not be granted. Contentious arguments were advanced before us by either side as to the statutory validity of these Regulations. We find substantial force in the arguments advanced by the learned counsel for the appellants that these Regulations, apart from the fact that they seemed to lack prior written approval of the Government required under Section 35(B) of the Act of 1963 as claimed by the Government itself before the Supreme Court in Civil Appeal No.7707 of 1997, do not seem to be in keeping with the statutory scheme and procedure prescribed in the Act of 1963. We are however not inclined to go into this issue as any finding upon the statutory validity of these Regulations at this late point of time is apt to open up a Pandora’s box by upsetting the merit promotions effected thereunder long ago. This Court would be disinclined to unsettle such settled matters. All the more so, when it would adversely affect persons who are not even parties before it. We are of the opinion that the matter is amenable to disposal on a simpler ground. Pertinent to note, the validity of the University Regulations is challenged in W.P.No.11555 of 1999, from which W.A.No.1141 of 2003 arises, on the ground that the same are contrary to G.O.Ms.No.82 dated 05.05.1998. Thus, apart from their statutory validity, the Regulations can be tested on this ground. The facts narrated supra put it beyond doubt that the Supreme Court and thereafter, the Government of Andhra Pradesh vide G.O.Ms.No.82 dated 05.05.1998 spelt it out in clear terms that the University was bound to follow the guidelines stipulated by the ICAR and the law laid down in DR.RASHMI SRIVASTAVA while effecting merit promotions. Pertinent to note, the ICAR guidelines explicitly stipulated that any scheme which the University may have for merit/personal promotion would not qualify for ICAR assistance, making it clear that the University had no discretion to interpolate its own ideas and requirements in the ICAR’s scheme. Further, the method of implementation of the scheme was also specified in great detail. The only leeway and discretion allowed to the University under Clause 4(a) of the ICAR guidelines was that the final selection of persons to be promoted could be made by the University in accordance with its normal procedure. It was however made clear that it would be necessary for the University to refer their work to at least three referees in the subject/discipline concerned and the referees were to be selected as per the procedure followed by the University for selection committees. The discretion given to it to follow the normal ‘procedure’ for making selections was misconstrued by the University as empowering it to introduce it its own qualifications and norms for making merit promotions. It is in the course of this exercise that the University prescribed the qualification of a Ph.D. as an essential requisite under Regulation 4 of the University Regulations of 1984. The insistence on this qualification is however not borne out by the ICAR guidelines which make it clear under Clause 4(f) that the main criteria for promotion under the scheme would be the merit of work as defined and not the seniority of the teachers. ‘Work’ is defined under Clause 4(a) of the guidelines to include research publications, book reviews, curriculum development, teaching aids developed, innovation in teaching methods and equipment development etc. It is manifest that the qualification of the teacher was not one of the criteria prescribed for attaining eligibility to be considered for merit promotion. By its very nomenclature and viewed in the backdrop of the objectives of the ICAR guidelines, it is clear that the scheme was to recognize outstanding work done by the University teachers in the field of teaching and research in Agriculture and allied sciences by way of a ‘critical assessment’. Such merit promotion was to be treated as purely personal to the incumbent and did not render him/her a member of the regular cadre to which he/she was granted merit promotion. Therefore, the qualifications prescribed for recruitment to the regular cadre post of Professor had no relevance in the context of merit promotion as a Professor. The University however misunderstood the very thrust of the scheme and rendered it mundane and commonplace