IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 5184 of 2010 Date of Decision : June 18, 2011 Shyam Verma and others Petitioner Versus C.S. K. Krishi Vishvavidyalya and another Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Ajay Mohan Goel, Advocate. For the respondents : Mr. Lokender Paul Thakur, Advocate. Sanjay Karol, J. (Oral) Petitioners have prayed for the following reliefs:- “ i) This Hon’ble Court may kindly be pleased to quash the impugned notification dated 11.8.2010 Annexure P6 and office order dated 18.8.2010 Annexure P9 by way of issuance of writ of Certiorary. ii) This Hon’ble Court may kindly be pleased to direct the respondent University by way of issuance of writ of mandamus not to implement notification dated 11.8.2010 and office order dated 18.8.2010. iii) This Hon’ble Court may kindly be pleased to direct the respondent University by way of issuance of writ of mandamus not to withdraw the promotion orders which have been issued in favour of the petitioners from time to time pursuant to their opting for the PPS Scheme vide notification dated 17.1.2002. iv) This Hon’ble Court may kindly be pleased to direct the respondent University by way of issuance of writ of mandamus Whether reports of Local Papers may be allowed to see the judgment? 2 not to withdraw the scales granted to the petitioners pursuant to their having for the PPS Scheme vide notification dated 17.1.2002 and also not effect any recoveries from them on the basis of notification dated 11.8.2010. v) This Hon’ble Court may kindly be pleased to direct the respondent University by way of issuance of writ of mandamus not to redraw the seniority of the Professors/Equivalent as per the decision contained in notification dated 11.8.2010.” 2. Facts qua the petitioners are similar and not in much dispute. Petitioner No. 1 was appointed as Assistant Plant Breeder in the Department of Plant Breeding and Genetics of the respondent- University. He joined on 10.5.1983. In the same cadre other petitioners were also appointed and they also joined service between the period 1983 and 1987. Post of Assistant Plant Breeder is equivalent to the post of Assistant Professor. With effect from 10.5.1996, in terms of order dated 11.11.1998, petitioner No. 1 was promoted to the post of Plant Breeder, which is an equivalent post of Associate Professor. The said order reads as under:- “OFFICE ORDER The Board of Management on the recommendation of the Assessment Committee has been pleased to promote Dr. Shyam Verma, Asstt. Pl. Breeder, Regional Research Station, Bajaura from the rank of Asstt. Pl. Breeder to the rank of Plant Breeder in the pay scale of Rs. 3700-125-4050-150-5700 w.e.f. 10.5.1996 under Career Advancement Scheme as notified vide Notification No. 2-19/89-HPKV(GA)42619- 76 dated 3.8.1989 and further amended from time to time. This promotion is subject to the following terms and conditions: 3 1. On promotion his pay and seniority shall be regulated as per rules of the University; 2. The promotion has been made by temporarily upgrading the post held by him and on vacation of the same by him the post held by him prior to this promotion shall be deemed to have fallen vacant; 3. He shall be on promotion for two years in the first instance from the date of issue of this order, subject to the provisions of Statute 7.7 as amended from time to time. Sd/- Registrar, HPKV, Palampur.” Similar orders of promotion were issued in favour of other petitioners also. 3. In terms of notification (Annexure P-2) dated 18.12.2000, the Board of Management of the respondent-University revised the Career Advancement Scheme for the teachers of the University by adopting guidelines issued by the Indian Council of Agricultural Research (ICAR) applicable w.e.f. 1.1.1996. Significantly in terms thereof all subsisting and existing schemes of PPS and CAS stood substituted. It was clarified that University was to generate its resources to meet the liability as a result of adoption of new CAS scheme. It was to be ensured that switching over to the new scheme would not result into double payments. 4. The scheme approved by the Board is in the nature of Rules (Annexure P-2) relevant extract of which reads as under:- 4 “6.4 Eligibility for career advancement of Associate Professor/equivalent (directly recruited as well as promoted) as Professor/equivalent. An Associate Professor/equivalent (directly recruited as well as promoted) shall be eligible for promotion as Professor/equivalent in the scale of Rs. 16400/450- 20900-500-22400, if he/she has : (i) Obtained a Ph.D. degree. (ii) Completed 8 years service as Associate Professor (directly recruited as well as promoted) provided that the requirement of 8 years service will be relaxed if the total service as Asstt. Prof./Asstt. Prof. Senior Scale/Asstt. Prof. Selection Grade/Assoc. Prof. is not less than 17 years. Provided further that at least 5 years of service should have been rendered as Assoc. Prof. Equivalent in HPKV. (iii) Made some mark in the area of scholarship/research/extension as evidenced by self-assessment, report of referees, quality of publications, contributions to the educational renovation, design of new courses and curricula, etc. (iv) Earned consistently good performance appraisal reports. (v) Participated in at least two refresher courses/summer institutes each of 3-4 weeks duration OR Engaged in other appropriate continuing education programmes of comparable quality as may be specified/approved by the UGC/ICAR after placement in the senior scale.” 5 5. The said Rule stood amended in terms of notification dated 18.12.2001 to the following effect:- 6.4(ii) Completed 8 years service as Associate Professor (directly recruited as well as promoted). No teacher will be granted senior scale, selection grade and promotion if he does not offer himself/herself for assessment on the prescribed date, in a particular year, on his becoming eligible, the responsibility for which shall rest upon the teacher concerned. He will be considered eligible from the same day of subsequent year in which he applies for assessment. 6. On 17.1.2002 respondent-University issued a notification which reads as under:- “NOTIFICATION In pursuance of decision of the Board of Management taken vide item No. 33 of its 73rd meeting held on 29.12.2001, the teachers (Asstt. Professors/equivalent) who were appointed on or before 1.2.1988, are given an opportunity to exercise their fresh options under the Personal Promotion Scheme as on 1.2.1988 in supersession of options exercised by them earlier, on the prescribed proforma, (copy enclosed) within a period of 45 days from the date of issue of this notification. The promotions under Personal Promotion Scheme shall be governed strictly under the guidelines issued by the ICAR from time to time. It is further made clear that the scheme has finally been 6 abolished by the ICAR w.e.f. 3.3.1999, after which they will be governed under Career Advancement Scheme. No relaxation/extension for preferring options shall be allowed beyond the stipulated period and the option once exercised would be final. As a consequence of change of option and grant of promotion under the Personal Promotion Scheme, the benefit reaped by such teachers on account of the grant of senior scale, selection grade and promotion under the Career Advancement Scheme shall be recovered/adjusted accordingly. All the Heads of Departments/Incharges of the research stations/Krishi Vigyan Kendras will ensure that the above instructions are brought to the notice of all teachers/scientists working under their control including those who are on study leave/long leave and foreign service etc. Sd/- Registrar, CSKHPKV, Palampur, H.P.” (Emphasis supplied) 7. Pursuant to the said notification petitioners exercised their option for Personal Promotion Scheme. It is also petitioners’ uncontroverted case that as a consequence thereof, they had to make monetary sacrifice in favour of the respondent-University. 8. Undisputedly from the year 2002 onwards petitioners unconditionally availed and received benefits under the Career Advancement Scheme and it was only in the year 2010 the same was withdrawn when in terms of notification dated 11.8.2010 7 (Annexure P-6) respondents amended the amendment carried out in terms of notification dated 18.12.2001, by prescribing the pay scale. It reads as under:- “Completed 8 years service as Associate Professor/equivalent (directly recruited as well as promoted) in the pay scale of Rs. 3700-5700/12000- 18300.” 9. By way of this amendment respondents have introduced a new condition of prescribed pay scale which is to be in line of letter dated 19.4.2001 (Annexure P-7) issued by the ICAR. Now this letter dated 19.4.2001 was in the knowledge of the University when the rules were amended on 18.12.2001. The authorities took a conscious decision of carrying out amendment without introducing the requirement of prescribed pay scale. 10. Circulars issued by the ICAR cannot be said to be ipso facto applicable for the reason that the respondent-University had always been adopting the same before making them applicable to its employees. In this regard Annexures PR-1 and PR-2 are relevant. All the conditions and terms of the letter (Annexure P-7) were not to be made applicable to the employees and it is for this reason that they were not incorporated in the amendment made vide notification dated 18.12.2001. As a sequel to the notification (Annexure P-6), respondents have issued impugned office order dated 18.8.2010 (Annexure P-9) whereby dates of promotion of various Associate Professors have been postponed by couple of years. Also recovery 8 for payment of salary for the period prior to the revised date is sought to be affected. 11. I am afraid, this action on the part of the university is impermissible in law. Conscious decision was taken by the university not to amend the rules on the lines of letter issued by ICAR. The directions, guidelines and instructions issued by ICAR are not automatically and ipso facto applicable to the University or its employees. Before its application University has to adopt the same. 12. In T. R. Kapur and others versus State of Haryana and others, 1986 (Supp.) SCC 584 the Apex Court has held that amendment to the Rules can be carried out with retrospective effect. Authority competent to lay down qualifications for promotion is also competent to change the same. The rules defining qualifications and suitability for promotion are conditions of service which can be changed retrospectively. However benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect and unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules, cannot be reverted and their promotions cannot be recalled. The rules laying down qualifications for promotion with retrospective effect must satisfy the tests of Articles 14 and 16 of the Constitution of India. The aforesaid view stands reiterated in State of Madhya Pradesh and others versus Yogendra Shrivastava, (2010) 12 SCC 538. But the right which is vested in an employee cannot be taken away by way of amendment with retrospective 9 effect [O.P. Lather and others versus Satish Kumar Kakkar and others, (2001) 3 SCC 110] 13. In the instant case there is no specific provision that the accrued benefit is to be taken away. Consequently action of the University in either postponing the petitioners’ date of promotion as Associate Professors or asking them to refund the monetary benefits already received by them for the period when they worked as Associate Professors cannot be said to be in accordance with law. In public interest University is empowered to carry out amendments without causing violence to Articles 14 and 16 of the Constitution of India. 14. The effect of the postponement of the date of petitioners’ promotion as Associate Professor from the years 1991–1996 to 2003 is that of their reversion to the original post for that period. This cannot be allowed. 15. Thus for the aforesaid reasons petition needs to be allowed. Action taken by the respondents in terms of Office Order dated 18.8.2010 (Annexure P-9) is quashed. 16. Petition stands disposed of, so also the pending application(s), if any. (Sanjay Karol), Judge. June 18, 2011 (PK)