Dr. Harish Chandra Gupta vs State Of U.P. And Others
2019 Latest Caselaw 4295 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
Court No. - 29
 

 
Case :- WRIT - A No. - 46079 of 2011
 

 
Petitioner :- Dr. Harish Chandra Gupta
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Shailendra,M.R. Gupta,Sushil Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,B.D.Pandey,Neeraj Tripathi
 

 
Hon'ble Pankaj Mithal,J.

Hon'ble Prakash Padia,J.

Dr Harish Chandra Gupta, petitioner herein in this petition retired on 30.06.2010 from the post of Reader (Chemistry) Pt. Deen Dayal Upadhyay Gorakhpur University, Gorakhpur.

The petitioner previous to his appointment as Reader in the University was working at the Mahatma Gandhi Post Graduate College, Gorakhpur which is affiliated to the above University. He worked there as Lecturer and thereafter was granted the designation of a Reader in Chemistry w.e.f. 27.06.1990 in accordance with the Government Order dated 16.12.1994 vide order dated 18.09.1995. Then he joined the University w.e.f. 03.01.2006 as Reader (Chemistry).

According to him he became eligible for promotion as Professor on completion of 13 years of service as Reader. He was called for interview by the three members selection committee but was not found suitable for the post as per the recommendation of the selection dated 14.12.2009. The Executive Council also vide its resolution dated 06.04.2010 agreeing with the Selection Committee refused to promote the petitioner.

The petitioner in the above circumstances preferred a reference under Section 68 of the U.P. State Universities Act, 1973 before the Chancellor but by the time the said representation came up for decision, the petitioner had retired on 30.06.2010, therefore, the Chancellor dismissed the representation vide order dated 13.09.2010 holding that it has become infructuous.

The above order of the Chancellor was challenged by the petitioner in a Writ Petition No.69941 of 2010 Dr. Harish Chandra Gupta Vs. State of U.P. and others. The writ petition was allowed vide judgment and order dated 01.12.2010 and the order of the Chancellor was quashed with the request to redecide the representation of the petitioner on merits.

It is in pursuance of the above order of the High Court that the Chancellor has passed a fresh order on 19.07.2011 again rejecting the representation of the petitioner holding that though it is true that the order of the selection committee has not recorded any reasons for holding the petitioner unsuitable for promotion yet the petitioner is not entitle to any relief as the matter of promotion can only be considered by the selection committee and since the petitioner has retired he cannot be referred to face the selection committee.

It is against the above order of the Chancellor that the petitioner has preferred this writ petition seeking quashing of the order of the Chancellor dated 19.07.2011; for constituting a fresh selection committee for considering his claim for promotion on merits w.e.f. the date juniors to him have been promoted and to accord all consequential benefits.

The matter of promotion of the petitioner is virtually academic in nature and if the contentions of the petitioner are accepted, he would only be entitled to get notional promotion which may ultimately result in financial benefits to him.

Heard Sri M.R. Gupta, learned counsel for the petitioner, Mr. Govind Narain Srivastava, learned Standing Counsel for the respondent No.1-State of U.P., Sri Neeraj Tripathi, learned counsel for the respondent No.2, Chancellor of Pt. Deen Dayal Upadhyay, University, Gorakhpur and Sri V.P. Pandey, learned counsel for the respondents No.3 and 4, Vice Chancellor and Executive Council of Pt. Deen Dayal Upadhyay Gorakhpur , University, Gorakhpur.

The undisputed facts as has been detailed earlier also are that that the petitioner is claiming promotion on the post of Professor (Chemistry) under the Career Advancement Scheme w.e.f. the date juniors to him have been promoted.

The petitioner possesses the following teaching experience:-

(i) Lecturer, Mahatma Gandhi Post Graduate College, Gorakhpur

(ii) Reader, Mahatma Gandhi Post Graduate College, Gorakhpur w.e.f. 27.06.1990

(iii) Reader, Pt. Deen Dayal Upadhyay Gorakhpur , University, Gorakhpur, w.e.f. 03.01.2006

Statute 11.12-E of the University introduced the scheme for promotion under Career Advancement Scheme w.e.f. 27.07.1998. The said statute apart from other things provide that only a Reader in the University for minimum of 8 years of service in that grade will be eligible to be considered for appointment as Professor. It further provides that Readers in Degree and Post Graduate Colleges will not be eligible for the post of Professor under the Career Advancement Scheme in the colleges.

For the sake of convenience the relevant part of Statute 11.12-E is reproduced hereinbelow:-

"11.12-E-With effect from 27th of July, 1998 teachers shall have the opportunities for Career Advancement Scheme (Promotion) as given hereafter:-

(1)...................................................

(2).................................................

(3) Only a Reader in the University with a minimum of 8 years of service in that grade will be eligible to be considered for appointment as a Professor, Readers in Degree and Post Graduate Colleges will not be eligible for the post of Professor under Career Advancement Scheme in the colleges.

(4)......................."

The aforesaid Statute provides for the promotional avenue for career advancement on the post of Professor. It is only available to a Reader of the University having a minimum 8 years of service in the grade of the Reader.

The petitioner on the date of consideration of promotion by the selection committee was working as Reader in the (Chemistry) department of University and as such was entitle for being considered for promotion as aforesaid. However, the petitioner had not put in 8 years of service as Reader at the University as he had joined University as Reader w.e.f. 03.01.2006 and the selection committee had met on 14.12.2009.

The second part of the above provision provides that Readers in Degree and Post Graduate Colleges will not be eligible for the post of promotion under the Career Advancement Scheme but it does not debars Readers of the University from consideration if their total service as reader is sufficient as per the statute.

Statute 11.12-E-11(A) provides as under:-

"Counting of past services for promotion from the post of Reader/Associate professor or equivalent to the post of Professor will be done in the following manner:

Past services without any break as a Reader/Associate Professor in any recognised University or College or past services rendered in Govt. of India/State Govt. Autonomous bodies of Govt. of India/State Govt. Laboratories shall be considered for promotion to the post of Professor only, if he/she was rendered his service in the pay scale of pay (Rs.3700-5700 pre-revised) Rs.12000-18300 (revised) and if he/she has possessed qualifications equivalent to that of Reader whilst working in the aforesaid institution of establishments for reckoning eight years of service in the post of Reader".

The above statute clearly provides that for the purposes of promotion to the post of Professor past services as a Reader in any recoginized University or College shall be considered if the service is in the pay-scale of Rs.3700-5700/- (pre-revised) Rs.12000-18300/- (revised) and the candidate possesses qualifications equivalent to that of Reader while working in such an Institution for the purposes of counting 8 years of service on the post of Reader.

Thus, on the plain reading of Statute 11.12-E(3) and 11.12.-E-11(A) in no uncertain terms provides that a Reader in the University is entitle to be considered for appointment as Professor provided he has put in 8 years of service as the Reader and that for the above purpose the services rendered by him as Reader in any College shall be considered if the same are in the desired pay-scale.

It may be pertinent to mention here that under the Government Order dated 16.12.2014 the designation of Reader was admissible only if the Lecturer is possessing the qualification of the post of the Reader and a degree of Ph.D. Therefore, there can not be any dispute with regard to the qualifications possessed by the petitioner of the post of Reader. However there is no material on record to indicate the pay-scale in which he was working.

The Chancellor in his order has found that no reasons exist for holding the petitioner unsuitable for promotion. Therefore, he observed that order refusing to grant promotion to the petitioner is not tenable but as the matter with regard to the suitability of the petitioner for promotion has to be considered by the Selection Committee only, it is not possible to convene a selection committee and to permit the petitioner to face it when he has already retired.

In view of above, now the question which crops up is whether a person, who has retired can be allowed to face the selection committee for the grant of notional promotion.

It is important to note that an employee has no vested right to promotion. He is only entitle to be considered for it fairly in accordance with relevant Rules and Regulations.

In the present case the petitioner was duly considered for grant of promotion as Professor under the Career Advancement Scheme by the Selection Committee but was not found suitable. The suitability of a person for promotion under the Rules is to be considered only by the committee constituted for the purpose and not by any other authority much less the court of law. The expertise of the Selection Committee which consists of experts may not be matched by the courts having special knowledge in the field of law but not in the subject entrusted to the Selection Committee.

In view of the above, even if the judicial authority at times finds that the order of the Selection Committee is legally unsustainable, it cannot of its own decide about the suitability of a person for promotion and it has to be left for consideration by the Selection Committee.

In the aforesaid position, the matter of consideration of promotion of the petitioner has to be placed before the Selection Committee.

The Selection Committee which considered the candidature of the petitioner for promotion in the year 2009 would not be available today. Therefore, a new Selection Committee has to be constituted for the purpose. At the same the suitability of the petitioner was required to be assessed vis-a-vis the other competitors at that time who would not be available in the present.

This apart, as in the meantime, the petitioner retired in 2010 and during this period of 10 years he may not be in the same position as he used to be in the year 2009. His efficiency to work may have declined due to growing age, retirement or otherwise.

All these matters would definitely affect the chance of promotion of the petitioner if it is considered after such a long gap particularly when he has retired. Therefore, there is hardly any purpose of sending the petitioner before the Selection Committee for consideration of his suitability for the purposes of promotion.

The petitioner ought not to forget that he has approached this court in exercise of its discretionary jurisdiction and it is not as a matter of right that he is entitle to the discretionary relief. The exercise of extraordinary jurisdiction is dependent upon lots of facts and the surrounding facts and circumstances of each case. It is not only in cases of mere illegality or wrong that the said power is to be exercised but in cases where additionally the court is satisfied that the grave injustice has been done to the petitioner or that non exercise of the said power would result in miscarriage of justice.

In the given facts and circumstances even if the petitioner has been incorrectly deprived of the promotion, he is not a person who may have suffered irreparably for the reason that it was not a case of determination of his service. He had worked for the full term and got his salary accordingly. Therefore, it is not possible to redress the wrong if any, done to him except for adequately compensating him for the same.

In view of the aforesaid facts and circumstances, we refrain ourselves from directing to undertake the exercise of consideration of the petitioner for notional promotion and to constitute a Selection Committee for the purpose but allow token damages of Rs. 1 lackh in compensation payable by the University within a month of production of this order where after for each day's delay University would also be liable to interest @ 8% per annum.

Thus, we do not deem it necessary to exercise our discretionary jurisdiction in this matter and allow it to attain quietus.

The Writ Petition stand disposed of.

Order Date :- 09.05.2019

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