Dr. R.N. Singh vs Banaras Hindu University Thru' ...
2011 Latest Caselaw 4797 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Judgment reserved on 28.04.2011
 
Judgment delivered on 23.09.2011
 

 

 
Civil Misc. Writ Petition No.19963 of 2003
 
Dr. R. N. Singh  Vs. Banaras Hindu  University & Ors.
 

 

 
Hon. Sunil Ambwani, J.

Hon. K. N. Pandey, J.

1. We have heard Shri Shailendra, learned counsel for the petitioner. Shri Ajay Singh appears for the University. Shri V.K. Upadhyay appears for the University Grants Commission.

2. This writ petition is directed against the decision of the Executive Committee of Banaras Hindu University, Varanasi dated 8th/9th January, 2003, rejecting petitioner's representation dated 13.3.2001; and for a direction to the University authorities to consider the petitioner for promotion to the post of Professor under MPS 86 for which he had given option in 1998 and his claim to be treated as eligible for promotion w.e.f. 1995. He has also prayed for consequential relief of arrears of salary and fixation in the pay scale from the date of his entitlement.

3. The petitioner had earlier filed Writ Petition No.21250 of 2001, which was disposed of by this Court on 25.5.2001 to decide his representation. The Executive Council by its resolution No.128 communicated to the petitioner on 8th/9th January, 2003 rejected the petitioner's representation. The resolution "ECR 128 at Item 14" is quoted as follows:-

"ECR128

ITEM 14

CONSIDERED the orders dated 25.5.2001 of the Hon'ble High Court, Allahabad on the Writ Petition No.21250 filed by Dr. R.N. Singh, Reader, Department of Chemistry, BHU to decide the petitioner's representation dated 13.3.2001 and letter dated 30.1.2001.

The Hon'ble High Court, Allahabad has passed the following orders in the Writ Petition No.21250 dated 25.5.2001 filed by Dr. R.N. Singh, Reader, Department of Chemistry, BHU

"The petition is disposed of with the directive to the authority concerned to decide the petitioner's representation dated 13.3.2001 (Annexure 10 to the Writ Petition) preferable within 8 weeks from the date of production of certified copy of this order in accordance under the law."

Since the case could not be disposed of by the University within the time stipulated by the Hon'ble High court, Dr. Singh filed a contempt writ No.2704 of 2001. The Hon'ble High Court passed the following orders on 21.11.2001:

"Issue notice to opposite parties calling upon them as to why the contempt proceedings shall not be initiated against them by not disposing of the representation of the petitioner dated 13.3.2001 as directed by the court on 25.5.2001.

Opposite parties need not appear in person, if represented through counsel."

Dr. R.N. Singh, aforesaid, was appointed as Temp. Lecturer in the Department of Chemistry w.e.f. 31.8.1979 followed by substantive appointment w.e.f. 21.12.1981. He was subsequently confirmed on 1.4.1983. He was placed in the Sr. scale w.e.f. 1.1.1986 vide E.C. Resolution dated October, 17-19, 1989. Dr. Singh applied further for promotion as Professor and Reader under M.P.S. in the Scale of Rs.4500-5700 and Rs.3000-5000 respectively and Reader under CAS in the scale of Rs.3700-5700. He was called for interview on 27.2.1998 for both the positions under MPS and CAS. Dr. Singh exercised his option for promotion as Reader under MPS-86, presumably because of the fact that the MPS Reader with Rs.3000-5000 pay scale were entitled to promotion as Professor under MPS, whereas the Readers under CAS were not entitled to promotion as Professors under MPS.

Accordingly his case was not considered by the Selection Committee under CAS. He was not interviewed for promotion as Professor under MPS on 27.2.1998 as he was not holding the position of Reader, on the date.

In this connection it is noted that the University is a large unit and the selection of teaching posts are arranged only on the availability of Visitor's nominees and expert members. The University has made efforts to convene the meetings of the Selection Committee but could not be held before 27.2.1998.

In view of his option Dr. Singh was promoted as Reader under MPS-86 in the scale of Rs.3000-5000 by the E.C. dated 28.2.1998. He accepted the offer on 28.2.1998. This promotion was antedated w.e.f. 31.8.1987 in view of ECR No.524 dated 12-13 August and 14-15 October, 1997.

Subsequently, the UGC vide its letter No.F.3-1/94 (PS)-6 dated October, 2000 communicated the following guidelines:

"The Commission decided that 8 years service as Reader in the scale of Rs.3700-5700 (revised to Rs.12000-18300) must remain the minimum eligibility for consideration of promotion from Reader to the post of Professor under Career Advancement Scheme."

As a result of this directive of the UGC quoted above, Dr. R. N. Singh was rendered ineligible to be promoted as Professor under CAS as he was placed in the grade of Rs.3000-5000.

Keeping in view of the above directives of the UGC, no Reader who was working in the scale of pay of Rs.3000-5000 (revised to Rs.10000-15200) has been promoted as Professor till date under CAS.

Therefore, Dr. R.N. Singh who has been working as Reader in the grade of Rs.10000-15200 (pre-revised Rs.3000-5000), cannot be considered for promotion to the post of Professor under CAS due to the aforementioned reasons. However, the University has received a communication dated 1.11.2002 from the UGC annexing therewith a copy of Govt. of India letter dated 18.10.2002 regarding upgradation of the pay scale of the Readers under MPS. Because of some confusion in the letter dated 18.10.2002 of the Govt. of India, the benefit of upgradation of the pay scale of Readers under MPS was not possible to be extended by the University. The Registrar is directed to seek clarification from the UGC with regard to the inconsistencies in Clause I & III of the letter dated 18.10.2002, occurring due the parenthesis", "which been put before "w.e.f. 1.1.1996" instead of after "w.e.f. 1.1.1996". It is also directed that as soon as the UGC clarifies the matter and permits the Readers in the scale of Rs.3000-5000 to be considered for further promotion under the Career Advancement Scheme (CAS), Dr. R.N. Singh and all other similarly situated teachers be considered for promotion under the Career Advancement Scheme.

RESOLVED that in view of the letter of the UGC bearing No.F.3-1/94 (PS)-6 dated October 2000, the aforesaid representations of Dr. R.N. Singh for promotion as Professor has no merit and is, therefore, disposed of accordingly.

RESOLVED FURTHER that the Registrar be directed to seek clarification from the UGC with regard to the inconsistencies between Clause I & III of letter dated 18.10.2002 because of the parenthesis "," which has been put before "w.e.f. 1.1.1996" instead of after "w.e.f. 1.1.1996" and seek permission to consider such Readers for promotion under CAS.

RESOLVED STILL FURTHER that as soon as the UGC communicates its clarification and removes the inconsistencies between Clause I & III of the letter dated 18.10.2002 enabling upgradation of Readers stagnating in the scale of Rs.3000-5000 and also permits consideration of such Readers to be considered for promotion under CAS, the candidature of Dr. R.N. Singh and all other similarly situated teachers be considered by the University for promotion to the post of Professor under CAS.

RESOLVED STILL FURTHER that the disposal of representations of Dr. R.N. Singh   by the Executive   Council   as above, shall  not come in the way of the University in  considering the candidature of Dr. R.N. Singh for promotion to the post of Professor under CAS, upon receipt  of     communication from UGC as aforesaid.
 

 

 
Registrar &                           Vice-Chancellor &
 
Secretary to the Council        Chairman
 
                                              Executive Council"
 

 

 

4. Shri Shailendra, appearing for the petitioner submits that the petitioner has passed all the examinations including B.Sc. and M.Sc. (Chemistry) in first class and was awarded Ph.D. in 1978. He has 64 research publications to his credit and 10 students have been awarded Ph.D. under his supervisions. The petitioner has also been awarded Yeddannapalli Memorial Award, 1991 by the Indian Chemical Society in 1993.

5. The petitioner was appointed as Lecturer on 31.8.1979 in temporary capacity. He was appointed on the substantive post of Lecturer in Chemistry by the University w.e.f. 21.12.1981 and was confined on 1.4.1983. He became eligible for promotion to the post of Reader under MPS 1986, and was allowed the benefit from 1.8.1987 vide order dated 28.2.1998, he, thereafter, became eligible for promotion to the post of Professor w.e.f. 1995 after completing 8 years of service as Reader.

6. The Merit Promotion Scheme 1983 (MPS 1983), sponsored by UGC and accepted by Union Government as well as the Central University provided for promotions to the posts of Reader and Professor. The MPS 1983 was revised and was called as Merit Promotion Scheme 1986 (MPS 1986). In the same year, a new scheme known as Career Advancement Scheme 1986 (CAS) was initiated by the Ministry of Human Resource Development on the recommendations of the University Grants Commission. This scheme provided for benefit of promotion to the post of Senior Lecturer in the pay scale of Rs.3000-5000/- and thereafter promotion to the post of Reader/ Selection Grade Lecturer in the pay scale of Rs.3700-5700/-. There was no opportunity in CAS, for promotion on the post of Professor, though the upper limit of the pay scale on the post of Professor in MPS 1986 was equivalent to the upper limit of the pay scale on the post of Reader in CAS 1986 i.e. Rs.5700/-.

7. Shri Shailendra Submits that the university authorities modified MPS 1986 and introduced certain provisions giving more benefits and promises namely; (a) all those teachers, who were selected under MPS 1986/ CAS 1986 were to be given pay scale and seniority from the date of his/her eligibility, irrespective of the date when selection committee met, provided he/ she is selected on the first available attempt; and, (b) the notional seniority to the teachers appointed under MPS 86/ CAS 86, was allowed from the date of their eligibility for promotion. These modifications were circulated by the University in its letter dated 8.7.1996.

8. The University further issued a circular on 29.7.1996 addressed to all the department/ faculty providing for fresh opportunity with fresh benefits and promises to the teachers under MPS-86 and called upon the eligible teachers to apply upto 31.8.1996. On the basis of this promise held out by the University the petitioner did not opt for CAS 1986. The petitioner instead opted for MPS 86 to get double benefit, namely to be promoted as Reader with effect from the date of his eligibility of Reader in 1987, and thereafter on the post of Professor in 1995, after completing 8 years.

9. It is submitted that the Executive Council of the University vide its Resolution No.140 dated 29th/30th March, 1996 decided that all those, who could not get the benefit prior to 1987, will also be given benefit of MPS 1986, on the ground of delay in convening the selection committee. The applications were sought from the teachers on 15.7.1996 assuring that they will be given benefit of MPS 1986. The petitioner appeared before the Selection Committee, and was selected for benefit of promotion under MPS 1986 on the post of Reader. Vide letter dated 29.7.1996 the Registrar of the University communicated to all the Directors of the Institutes, the Deans of Faculties, the Heads of the Departments etc. that as per the Executive Council's Resolution No.140 of 29th/30th March, 1996, confirmed in the meeting dated April 30th and May 1st, 1996 regarding the consideration of eligible prospective candidates under MPS 1986. Applications were invited from teachers completing their eligibility under MPS 1986 for the post of Professor/ Reader by 31st August, 1996. Those teachers, who had completed 8 years of continuous service as Reader (out of which 4 years were spent in this University) were to be eligible to be considered for promotion as Professor in the pay scale of Rs.4500-5700/-. The petitioner represented to the University on 30.1.2001, 23.2.2001 and 13.3.2001 claiming benefit of promotion on the post of Professor, relying upon several resolutions of the Executive Council granting benefits under MPS with effect from the date of eligibility.

10. Shri Shailendra submits that had the petitioner been given the benefit of promotion as Professor under MPS 1986 w.e.f. 1995, he would have received the benefit of pay scale of Rs.4500-5700/-, and in 1996 after the revision of the pay scales by the 5th Central Pay Commission. He could be entitled to the pay scale of Rs.16,400-22,400/-. He submits that the juniors to the petitioner such as Dr. D. N. Tripathi, Dr. L. Chaturvedi, appointed as Lecturers later to the petitioner on 23.12.1981 and July 1980, respectively in the Physics Department were actually promoted as Professor in MPS 1986 in December 1997 and July 1996 w.e.f. March 1997, whereas the petitioner was not considered for the same benefit.

11. It is submitted that though MPS 1986 was not extended subsequent to 27.7.1998, the benefit was extended to all the eligible persons, and they were required to submit fresh option. The University sought clarification from UGC on 8.10.1999, and instructions whether this MPS 86 would continue subsequent, to the cut off date. The petitioner's claim was rejected after intervention of the High Court directing the Executive Council to decide the representation.

12. Shri Shailendra submits that though the petitioner had applied for benefit on NPS 1986, his rights were considered under MPS 1986 against the promise held out by the University seeking options in 1998. The petitioner opted for MPS 1986 providing for lesser pay scale in comparison to CAS 1986 for availing the benefit of promotion on the post of Professor. Once it is admitted that the petitioner was eligible for promotion, which was denied to him in due time for not convening the Selection Committee on the fault of the University, the petitioner can not be denied benefit like other teachers.

13. In the counter affidavit of Shri C.N. Chakrabarty, Senior Clerk, Legal Cell of the University it is stated in para 4 that the petitioner was promoted as Reader in MPS 1986 on his own option in the pay scale of Rs.3000-5000/-. He had accepted the offer on 28.2.1998. His promotion was antedated w.e.f. 31.8.1987, in view of ECR No.524 dated 12th/13th August and 14th/15th October, 1997. Accordingly his case was not considered by the Selection Committee under the CAS 1986. He was not interviewed for promotion as Professor under MPS 86 on 27.2.1998 as he was not holding the post of Reader on that date. In the meantime the MPS 1986 was abolished by UGC w.e.f. 27.7.1998. The Executive Council thus resolved that since the UGC by its letter dated 17.11.1999 had abolished the MPS 86 from 27.7.1998, it was not possible to hold the meeting of Selection Committee again within the period of four months. The University is a large unit, and the selection of teaching post are arranged only on the availability of the Visitor's nominees and the expert members. The University had made efforts to convene meeting of the Selection Committee, which could not be held before 27.2.1998. Thereafter, the UGC vide Letter No.F.3.-1/94 (PS)-6 dated October, 2000 communicated the following guidelines:-

"The Commission decided that 8 years service as Reader in the scale of Rs.3700-5700 (revised to Rs.12000-18300) must remain the minimum eligibility for consideration of promotion from Reader to the post of Professor under Career Advancement Scheme."

14. The petitioner was thus rendered ineligible to be considered for promotion as Professor under CAS. No such Reader, who was working in the scale of Rs.3000-5000/- revised to Rs.10,000-15200/- has been promoted as Professor under CAS. The petitioner's representation was accordingly disposed of by Executive Council vide Resolution No.128 dated 8th/9th January, 2003 with clarification that the disposal of his representation will not come in the way of the University in considering his promotion on the post of Professor under CAS. In reply to the allegations of discrimination caused to the petitioner as against Dr. D.N. Tripathi and Dr. L. Chaturvedi, both serving in the Department of Physics, it is stated in para 14 of the counter affidavit that the University is a large unit. It made efforts to convene the meeting of the Selection Committee but could not succeed to hold the meeting before 27.2.1998. Both Dr. P.N. Tripathi and Dr. L. Chaturvedi were promoted as Reader under MPS 86 on 9.4.1992, whereas the petitioner was promoted as Reader on 28.2.1998. They were thus eligible for being promoted as Professor on 3.7.1996 and were actually promoted as Professor under MPS 86 on 24.3.1997. The petitioner was not eligible for promotion as Professor on the date they were promoted.

15. The writ petition was filed on 6th May, 2003. Notices were issued on 12th May, 2003. On 7.9.1005 the time was extended to allow Shri V.K. Upadhyay appearing for the University Grants Commission to file a reply. On 7.5.2007 the writ petition was dismissed. The order was recalled on 25.2.2008.

16.	Since the matter is pending in the Court for last 8 years, we do not propose   to relegate   the petitioner to   avail     the alternative remedy of making representation to the Visitor.  We, therefore, heard the matter on merits.
 
17.	We are required to consider  whether the petitioner having opted for MPS 86  under which he was promoted as Reader on 28.2.1998 with effect from the date he became eligible   i.e. 1.8.1987,  was arbitrarily  denied promotion   on the post of Professor for which he became   eligible on 31.8.1995,   on account   of delay caused by the University not convening   the meeting of the Selection Committee,  and for which he was not considered    and interviewed   for promotion under MPS 86  on 28.2.1998  (before the abolition of the scheme) on the ground that he was not holding the post of the Reader.   The petitioner was called for interview on 27.2.1998  for consideration for promotion, both  under MPS 1986 and CAS.  Since he had   exercised option for promotion as Reader under MPS 86 for  the reason   that the Reader under MPS was provided  the pay scale of Rs.3000-5000/-,  he entitled   for promotion as Professor, whereas Reader under CAS was not entitled      for promotion as Professor.  Thus  he could not get a chance  for the post of Professor.
 
18.	The petitioner had exercised the option under both the Schemes, after considering   the  respective  benefits.  He chose to opt for MPS 86  to be promoted    as Reader   on a lower pay scale,   with a chance to  be   promoted as Professor.  The University being a large unit, selections on the post of Professor could not be held, as the University could not convene   the meeting of the selection committee before 27.2.1998.    On 28.2.1998 the petitioner accepted the offer  to be promoted on the post of Reader in MPS 1986 w.e.f. 31.7.1987.  The MPS 1986  was later on abolished on 27.7.1998.  The UGC  did not accept the relaxation of 8 years' service as Reader  and directed that the minimum eligibility  for consideration of promotion from Reader  to the post of Professor under CAS will  remain as 8 years.   The UGC guidelines are binding   upon the University and thus even if the University had caused delay in convening the selection committee for which there are no allegations of malafide, we are of the opinion that until UGC clarifies and  enables   upgradation of Readers and also permits   consideration of Readers  for promotion under CAS,  for which a uniform  policy has to be followed, the individual hardships   caused cannot be a ground, on which the relief    may be given to the petitioner.  The Executive Council has  resolved that  until the UGC clarifies and removes the inconsistencies,  the petitioner cannot   be given   promotion on the post of Professor.
 
19.	The writ petition is  dismissed.
 

 
Dt.23.09.2011
 
SP/