HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.277 of 2008 (S/B) Dr. Himanshu S. Jha …Petitioner Versus The Chancellor, Kumaun University & others ...Respondents Mr. Manoj Tiwari, Senior Counsel assisted by Mr. Alok Mehra, learned counsel for the petitioner. Mr. B.D. Upadhyay, learned counsel for respondent nos.2 & 3. Mr. Sharad Sharma, Senior Counsel assisted by Mrs. Indu Sharma, learned counsel for respondent no.5. Mr. K.P.Upadhyay, Additional Chief Standing Counsel for the State/respondent no.6. Dated : September 6th 2010 Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Hon’ble Barin Ghosh, C.J. (Oral) We have permitted the learned counsel for Dr. Smt. Ila Sah to file a further affidavit in Court today. 2. The State Government is not a party to the present writ petition. The reliefs claimed in the writ petition are not directed against the State Government. However, while considering the matter, we felt that the State Government has not discharged some of its obligations pertaining to the matter in question and accordingly, it would be appropriate, on our part, to direct the State Government to discharge its such part of the obligations and accordingly, we make the State Government, through the Secretary, Higher Education 2 Department, Dehradun, Uttarakhand, respondent no.6. The learned counsel for the State Mr. K.P. Upadhyay, Additional Chief Standing Counsel is present before us and in his presence, the present order is being passed. 3. The Uttar Pradesh State Universities Act, 1973 is applicable in its full force to the State of Uttarakhand. In terms of Section 31 of the Act, posts of teachers of the Universities and affiliated or associated colleges are to be filled in by direct recruitment. By Sub Section 4 of Section 31, the Legislature has constituted different Selection Committees for appointment of teachers. The Selection Committee, thus, constituted for appointment of teachers of Universities is quite different from the Selection Committees constituted for appointment of teachers of affiliated or associated colleges. The appointing authority of teachers, however, in terms of the mandate contained in Section 31 is the Executive Councils for Universities and the management committees of the affiliated or associated colleges for such colleges. In terms of the mandate contained in Section 31 of the Act Selection Committee upon completion of selection is required to make recommendation for appointment of teachers of a University to the Executive Council thereof. In the event Executive Council does not agree with the recommendation made by the Selection Committee, the Executive Council is required to refer the matter to the Chancellor, alongwith reasons of disagreement and thereupon the Chancellor is required to take a decision, which would become final. 3 4. On 10th October, 1984 Section 31(A) was inserted in the Act. By reason of the provisions contained in the said inserted Section, teachers, namely, Lecturers and Readers of Universities, appointed Under Section 31 of the Act, became entitled to personal promotion to the posts of Readers and Professors respectively. However, in order to obtain such personal promotion, Lecturers and Readers are required to put in such length of service and to possess such qualifications as may be prescribed. 5. In terms of Section 2(14) of the Act “prescribed” means prescribed by the statutes. Section 49 of the Act prescribes that matters relating to Universities may be provided in statutes. Recruitment of teachers of Universities, their qualifications and experience are some of the matters relating to Universities contemplated in Section 49 of the Act, which may be provided in statutes. 6. Section 50 of the Act authorised the State Government to make the first statute of Universities. The power to amend the first statute though vests in the State Government, the Executive Councils of the Universities, while have been authorised to make new or additional statutes, they have also been authorised to amend or repeal the same as also the first statute. 7. In so far as Kumaun University is concerned, with which we are concerned in the present case, the first statute 4 was made, whereupon the same was amended from time to time. In terms of the provisions contained in the said statute Lecturers, who are P.hd. and have put in at least 13 years full time continuous service as such, or Lecturers who are not P.hd. but have put in at least 16 years full time continuous service as such, are entitled to be appointed as Reader, either by way of direct appointment or by way of personal promotion. At the same time, Readers, who have put in at least 10 years full time continuous service as such, may be directly appointed as Professors or may obtain personal promotion to the posts of Professor. 8. On 6th December, 2001 the Government introduced a Career Advancement Scheme for the teachers of Universities and associated/affiliated colleges, except colleges affiliated to Sampurnanand Sanskrit University, Varanasi. The said Career Advancement Scheme came into force with effect from 27th July, 1998. In terms thereof, a Lecturer in a University or in an associated/affiliated college will be eligible for placement in the senior scale and thereupon he may move to the grade of Lecturer selection- grade or Reader. It prescribed that the minimum length of service for eligibility to move to the grade of Lecturer (senior scale) would be four years for those with P.hd. degree, five years for those with M. Phil. degree and six years for others at the level of Lecturer and that for eligibility to move to the grade of Lecturer (selection grade)/Reader, the minimum length of service of Lecturer (senior scale) shall be uniformly five years. It further 5 provided that for promotion to the post of Reader and Professor, the minimum eligibility criteria would be P.hd. or equivalent published work. That being the situation, there is a clear indication that the said Career Advancement Scheme sought to interfere with the statute referred to above. In terms of the said Career Advancement Scheme, a Lecturer cannot be promoted as a Reader. A Lecturer is first required to come to the senior scale and only after he has worked in the senior scale for five years, he would become eligible for being promoted to the post of Reader. He must, at the same time, obtain P.hd degree or must have to his credit equivalent published work. The said state of affair indicates that the said Career Advancement Scheme sought to alter the statute. We have not very carefully gone through the said Career Advancement Scheme for we have only concentrated to that part of the Career Advancement Scheme, which dealt with promotion of Lecturers to Readers. However, while doing so, it has come to our notice that the said scheme intends to alter the Selection Committee of affiliated/associated colleges than what has been provided in Section 31 of the Act. Therefore, the said Career Advancement Scheme also contemplates alteration in the Act. 9. A look at the said Scheme would make it clear that if a Lecturer of a University has to his credit the relevant qualification and length of service he would become a Lecturer (senior scale). If a Lecturer senior scale does not have P.hd degree or equivalent published work, he upon 6 fulfilling other criterias would become Lecturer (selection grade), but would not be promoted to the post of Reader. A Lecturer, in the senior scale having five years service in the senior scale to his credit, can be promoted to the post of Reader provided he has a P.hd degree or equivalent published work and other qualifications mentioned in the said Scheme. There is, therefore, no contemplation of placement of a Lecturer in the grade of pay applicable to Readers. A Lecturer who has become a senior scale Lecturer may be placed in the grade applicable to selection grade lecturer, if he is not a P.hd and does not have equivalent published work, provided he has other qualifications, as prescribed in the said Scheme, but a lecturer (senior scale) would only become a Reader, provided he has been promoted to the post of Reader, but then he must be a P.hd. The Scheme envisages that such promotions would be accorded after being selected in the manner prescribed in Sections 31 and 31 (A) of the Act. The Scheme provides that if such promotion is accorded on being selected at the first instance, the incumbent would be entitled to the grade applicable to Reader from the date the incumbent acquires eligibility or from 27th July, 1998 whichever is later. The Scheme further provides if the incumbent is not found suitable for being promoted by the Selection Committee, his case would be considered one year thereafter, and if he is then recommended for promotion, he will be entitled to the grade of Reader from the date of taking over charge as Reader. 7 10. We have discussed the law as above, inasmuch as, the dispute inter-se the parties herein are confined within the law as above. The petitioner Dr. Himanshu S. Jha and respondent no.5 Dr. Smt. Ila Sah were senior scale Lecturers of Kumon University in the Sociology Department. Both of them were serving at Almora Campus of the University. Admittedly, Dr. Ila Sah joined as Lecturer prior to Dr. Himanshu S. Jha and accordingly, she was senior to Dr. Himanshu S. Jha. The petitioner as well as the respondent no.5 acquired eligibility for being considered for promotion to the post of Reader in terms of the said Career Advancement Scheme after 1998. Their cases for promotion were considered by the Selection Committee on 7th October, 2005, when the Selection Committee found the petitioner suitable for promotion, but did not find respondent no.5 suitable for promotion. After recording such finding, the Selection Committee made an appropriate recommendation before the Executive Council. The Executive Council at its meeting held on 29th November, 2005 approved such recommendation and, accordingly, the petitioner was promoted to the post of Reader and by reason of such promotion became entitled to the benefits of the grade of Reader w.e.f. the date he became eligible for being promoted to the post of Reader. The result of the Selection was communicated to the respondent no.5 on 3rd December, 2005, when the respondent no.5 made a representation before the Chancellor under Section 68 of the Act seeking his interference in the matter of her non-selection. This representation was rejected on 18th January, 2007 by the 8 Chancellor holding out that he has no reason in the facts and circumstances to express any opinion contrary to the opinion expressed by the experts. Against this decision of the Chancellor dated 18th January, 2007, respondent no.5 filed a review petition on 17th August, 2007 which was decided on 25th October, 2007 by the Chancellor, when the Chancellor, amongst others, directed reconsideration of the case of promotion of the respondent no.5 to the post of Reader. Thereafter on 31st October, 2007 the Executive Council decided to move the Chancellor to bring to his notice that non selection of a long serving teacher for the next higher post is not normal. On 31st October, 2007, the respondent no.5 was a member of the Executive Council. According to the learned counsel for the said respondent, she did not participate in the deliberation pertaining to the said decision of the Council and according to the counsel for the University he is not aware at present whether, infact, respondent no.6 participated or not in the discussions pertaining to the said decision. It appears that the University thereupon approached the Chancellor on 22nd December, 2007 to highlight the said decision of the Executive Council and thereafter on 1st January, 2008 the respondent no.5 once again moved the Chancellor contending that the decision of the Executive Council dated 31st October, 2007 needs to be considered. The Chancellor by his order dated 29th September, 2008 directed holding of fresh selection of the respondent no.5 with a rider that, in the event, during such selection, she is selected, she will be entitled to the benefit 9 of her such selection from the date she became eligible for being considered for such selection. 11. In the event, fresh selection takes place and the respondent no.5 is selected, by virtue of the said order of the Chancellor dated 29th September, 2008, she will get the benefit of her selection from the date she became eligible and accordingly, she would become senior in all respect to the petitioner and hence the present writ petition. 12. The basic contention of the petitioner is that in terms of the statute, if invoked, the selection/promotion would be prospective and in terms of the Career Advancement Scheme selection/promotion in the first go, will entail selection/promotion from the date of eligibility but in the event selection/promotion is accorded by a second selection process, for in the first selection process the candidate has not succeeded, he would be entitled to the benefits of such selection/promotion prospectively, which has been altered by the Chancellor by the order impugned in the writ petition without any power to do so. The other contention of the petitioner is that, even in terms of the said order of the Chancellor, fresh selection has not yet been made, but despite that the respondent no.5 has been accorded promotion to the post of Reader. It has lastly been contended that, as yet, no decision has been taken to quash or set aside the non selection of the respondent no.5 or to select the said respondent and, accordingly, it is impermissible in law to 10 consider that the respondent no.5 has been promoted to the post of Reader. 13. The order impugned is the third order in the series of orders dealing with the same subject, however, it is unfortunate that the order impugned does not record the decisions rendered on earlier two occasions and thereby gave an impression that the order impugned has been passed without reference to the previous two orders, which dealt with the subject finally. 14. Be that as it may, it appears to us that the order impugned was made being influenced by the decision of the Executive Council taken on 31st October, 2007. According to law contained in the Act and the statute, it is the Governing Committee, who is to appoint and, accordingly, it is the Governing Committee, who is authorized by law, to accept or not to accept selection made by the Selection Committee. In terms of the law thus made, the Executive Council is not bound either by the selection or non selection of a candidate by the Selection Committee. It can record its decision on selection as well as non selection and forward the matter to the Chancellor for his views. In the instant case, the Executive Council, after having had the recommendation of the Selection Committee, accepted non selection of the respondent no.5. It could not thereupon reopen the matter at a later stage. It was absolutely improper and, as it appears to us, ill advised on the part of the Executive Council, to take such a decision at a meeting in 11 which the respondent no.5, as a member, could attend. It shows that such a high body may be influenced by a member thereof for his or her personal gains. Further the step taken by the Executive Council at its meeting held on 31st October, 2007, being not authorized by the law governing recruitment/promotion of Lecturers, should not have been resorted to. Such actions on the part of such a high body diminishes public confidence in them. They must be aware of what they are doing and that whatever they are doing, is being watched by the people. The other, but most important, aspect is that the Executive Council did not express its disagreement with the findings of the expert. 15. The Chancellor having had refused to interfere with non selection of the respondent no.5, despite he having been approached on three occasions, it was absolutely unjust, improper and unauthorized, on the part of the Executive Council of the University, to treat the respondent no.5 to have been selected for promotion. The said action, on the part of the Executive Council of the University demonstrates total apathy to law and obligation to discharge statutorily fixed duties. The law, on the subject, does not close the door for a senior scale Lecturer to be promoted to the post of Reader, once he has not been selected by the Selection Committee for such promotion. He is entitled to reappear before the Selection Committee constituted therefor by the statute. However, without being selected for being promoted no senior scale Lecturer, nor even the respondent no.5, can be promoted to the post of Reader. In the impugned order 12 too, the Chancellor directed reselection of the respondent no.5. 16. We, accordingly, once again direct reselection of the respondent no.5 by a Selection Committee, to be constituted in terms of the provisions contained in Sub Section 4 of Section 31 of the Act. Let the said Selection Committee be constituted, as quickly as possible, but not later than one month from the date of service of a copy of this order upon the Vice Chancellor of the University. Let the Selection Committee, so to be constituted, ascertain the merits of the respondent no.5 for being promoted to the post of Reader, as quickly as possible, but not later than one month from the date of constitution of the Selection Committee. In the event, Selection Committee does not recommend appointment of the respondent no.5 to the post of Reader by promotion, and if the Executive Council does not agree therewith, they shall refer the matter to the Chancellor alongwith reasons of disagreement, as quickly as possible, but not later than one month from the date of the recommendation by the Selection Committee. It goes without saying that the Selection Committee shall make the recommendation within seven days from the date of completion of the selection process. We request the Chancellor to take final decision thereon, within a period of one month from the date he receives the recommendation of the Selection Committee and the reasons of disagreement of the Executive Council. 13 17. Until such time the recommendation is made by the Selection Committee, as above, the respondent no.5 shall continue to discharge duties in the capacity as she is discharging today. In the event, she is not selected for being promoted to the post of Reader, the Executive Council shall take appropriate steps to give appropriate assignment to the said respondent, commensurate to the post, she is otherwise entitled to hold. In the event, however, the Selection Committee recommends promotion of the respondent no.5 to the post of Reader and the Executive Council does not disagree with such recommendation, she shall continue to discharge her duties attached to the post she is presently holding, but she will become entitle to the grade of Reader from such date as mentioned below. 18. Appointments of teachers in Universities are governed by the Act as mentioned above. The qualifications and other perquisites for being so appointed have been provided in the first statute to the University. The Career Advancement Scheme referred to above brings about changes in the concept of promotions to be given to teachers of Universities and associated/ affiliated colleges. While doing so, to the extent indicated above, the original concept contained in the Act read with the statute, has been altered. The said Career Advancement Scheme is being implemented since 6th November, 2001. The provisions contained therein are required to be incorporated in the Act as well as in the statute for the purpose of enabling the beneficiaries of the said Scheme to obtain the benefits thereunder in accordance 14 with law and not on the basis of something made outside the law. The State Government is, therefore, required to incorporate various provisions contained in the said Scheme appropriately in the statute as well as in the Act, so as to make the scheme available to the beneficiaries thereof in accordance with law known to the people. We are requesting the State Government to do so. We are earnestly requesting the State Government to ensure that the provisions of the said Career Advancement Scheme, which have been implemented by the State Government since 6th November, 2001, are incorporated appropriately in the Act as well as in the statute, so that it cannot be contended that the provisions and the benefits contained therein are not available, inasmuch as, those have not been incorporated in the Act or in the statute. We hope and expect that the State Government will do what it was required to do as long back as on 6th November, 2001 within a period of six months from today. At that stage the State Government may decide whether to incorporate or not to incorporate Clause 15 of the said Scheme in the statute. In the event, it incorporates Clause 15 of Scheme in the statute, then and in such event the respondent no.5 shall be entitled to benefit of her promotion, if any granted to her, from the date of her promotion. If the said Clause is not incorporated and the respondent no.5 is promoted, she should be permitted to have the benefits of the promotion from the date she earned eligibility to be promoted. 15 19. Before concluding we may point out that the Chancellor did not take notice of the Law Governing the field as contained in the Act and the statute, nor did he take notice of the Career Advancement Scheme. In terms of the Act and the statute the promotion should always be prospective. In terms of the Career Advancement Scheme, success in the second attempt, would always be prospective. The Chancellor, while permitted the second attempt, could not give benefits contrary to what has been provided in the Scheme. 20. We accordingly, with the directions, as above dispose of the writ petition. Let a copy of this order be forwarded to the Secretary, Higher Education Department, Government of Uttarakhand, at the cost of the Registry, at an early date. (V.K.Bist, J.) (Barin Ghosh, C.J.) 06.09.2010 Arpan