Nirdesh Pal vs State Of U.P. And 5 Others
2015 Latest Caselaw 1918 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 9
 

 
Case :- WRIT - A No. - 46748 of 2015
 

 
Petitioner :- Nirdesh Pal
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Girish Chandra,Shailendra
 
Counsel for Respondent :- C.S.C.,R.A. Akhtar
 

 
Hon'ble Arun Tandon,J.

Hon'ble Bharat Bhushan,J.

Heard Sri Shailendra, learned counsel for the petitioners and learned Standing counsel for respondent no. 1.

This writ petition has been filed by 12 petitioners, out of which only petitioner nos. 3,4, 5,6,7,8,9,11 and 12 have to their credit NET qualification and others claimed to have obtained M.Phil degree prior to the year 1993. Petitioners before this Court seek following reliefs :-

"(a) issue a writ, order or direction in the nature of certiorari quashing the impugned Government Order dated 28th May, 2015 (Annexure no. -8 to the writ petition) and circular dated 13th June, 2013 (Annexure No. 9 to the writ petition) to the extent it is appl8ied with retrospective effect against the petitioners like candidates, whose right of promotion under Career Advancement Scheme is already due prior to this date;

(b) issue a writ, order or direction in the nature of mandamus directing the respondents-authorities not to implement the Statute 11.04, Part-II of the in reference to the petitioners University and teachers for implementation of Career Advancement Scheme with retrospective effect, as the Statute itself came on 3rd December 2013 and further, since the Regulations itself has been modified introducing capping system in 2013 by amending the Regulations, the same can not be directly applied to the State Universities, unless the same is adopted and amended by the State Government or the competent authority;

(c) issue a writ, order or direction in the nature of mandamus directing the respondents-authorities to complete the Career Advancement Scheme, as the same was existing on the date when it becomes due to the petitioners i.e. the old Career Advancement Scheme, 2010, and the petitioners/University may not be pressurized for implementation of Scheme of 2010 amended in 2013 with retrospective effect, which is adversely affecting the right of promotion in view of existing law on the date the benefit was due to the petitioners and, accordingly, the promotions may be done as per existing law and the benefits may be provided within a period as stipulated by this Hon'ble Court;

(d) issue a writ, order or direction in the nature of mandamus directing the respondents-authorities to implement the Government Circular dated 13th June, 2015 (Annexure No. 9 to the writ petition) first time introducing the format for new promotion scheme, i.e. initiation of true implementation of 2010 UGC Regulations with prospective effect and the authorities may be directed to provide the infrastructure, evaluation system, of evaluation of category of marks and may ensure that the infrastructure, in reference to which evaluation is to be done in future, for true observance of the provisions of University Grants Commission Regulations, 2010, and not to give effect to the Circular dated 13th June, 2015 in reference to those whose right of promotion is due prior to 13th June, 2015."

From the documents enclosed at page-36 of the paper-book, it is apparent that petitioners have been given the benefit of Ist stage Career Advancement Scheme in terms of University Grants Commission Regulations as were applicable prior to 30.6.2010. The petitioner claims IInd stage of Career Advancement Scheme. The petitioners with reference to the chart submit that they are entitled to IInd Career Advancement Scheme from the date mentioned in last but one column i.e. 16.12.2013 to 27.3.2015 while in respect of petitioner no. 9, Sachin Kumar, no date of such consideration has been mentioned. The petitioners contend that regulations of 2010 framed by University Grants Commission (in short, the U.G.C.) for providing the Career Advancement Scheme must not be given retrospective effect especially when the consequential amendments in the Statutes of the University have been made only under letter of the State Government i.e. 3.12.2013. Therefore, the provisions of Regulations of 2010 framed by U.G.C. would apply in terms of amended Statutes only w.e.f. 3.12.2013 and not prior to it. It is further stated that U.G.C. has made further amendments in the University Grants Commission (Minimum Qualifications for the Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010, namely, 2nd amended regulations, 2013. These amendments have been accepted by the State Government by direct corresponding amendment in Statutes under letter dated 29.7.2015. Therefore, the date of amendment, in Statutes will be, the crucial date for benefit being considered in accordance with the amended rules and not from the date the regulations, 2010 were framed by the U.G.C.

Sri Shailendra, learned counsel for the petitioners has placed reliance on the judgment of the Apex Court in Kalyani Mathivanan versus K.V. Jayaraj and other 2015(6) S.C.C. 363 for the purpose of supporting his contention, that the regulations framed by the U.G.C. are mandatory in the State which have adopted U.G.C. Regulations and not for the State Universities who have not adopted the same. It is only the date of adoption of U.G.C. Regulations which will amend the earlier Career Advancement Scheme and not the date on which the U.G.C. has framed the regulations.

From a simple reading of Government order 31.12.2010, we find that the State Government decided to adopt U.G.C. Regulations uniformly for all the State Universities. By the said order issued under section 50 of the State Universities Act, Registrars of all the State Universities and Director of Higher Education, U.P. Allahabad were directed to make corresponding amendments in the Statutes. We find that the universities failed to carry out the corresponding amendments in the Statutes after adopting U.G.C. Regulations, 2010. The State government, therefore, in exercise of power under section 50(6) of State Universities Act has made amendments in the Statutes of all the Universities.

We are of the considered view that the writ petition is pre mature so far as prayer no. 1 is concerned. It may be noticed that under the Government Order dated 28.5.2015 only directions have been issued to comply with the regulations framed by the U.G.C. In respect of teachers who had become eligible for such Career Advancement prior to 30.6.2010, old procedure has been directed to be adopted reference para-4 of the Government Order. Remaining part of the provisions of Regulations of 2010 will apply from the date the regulations have been enforced i.e. 30.6.2010.

In so far as petitioners are concerned, they were provided Ist Career Advancement which accrued prior to 2010. The benefits thereof have already been granted to them.

In so far as second stage of career advancement is concerned, it has accrued subsequent to 3.12.2013, the plea that the date of amendment in Statutes should be taken for applying amended provisions need not been gone into in this petition as such plea does not lead to any benefit to the petitioners. Their right of consideration for 2nd stage has accrued after amendments were introduced in the Statutes by the State Government under the Government order dated 3.12.2013.

The Government order dated 20.5.2015, therefore, is not under challenge nor has been brought on record.

We find no substance in prayer (b) wherein it is prayed prayed that Statute 11:04 should not be given retrospective effect as it has been amended on 3.12.2013. We hold that prayer in that regard is wholly misconceived. There is no attempt on the part of any authority to give effect to Statute, as amended on 3.12.2013 retrospectively. We also note that petitioners have not impleaded the concerned University in the present writ petition although amendment in the Statute are binding on the University. It is for the University to implement the career progression scheme in respect of its teachers and teachers of affiliated colleges.

For all the reasons stated above, the writ petition is dismissed.

Order Date :- 20.8.2015

SU.