Dr. Rama Shanker vs State Of U.P. Through Addl.Chief ...
2021 Latest Caselaw 8 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 21
 

 
Case :- SERVICE SINGLE No. - 25821 of 2020
 

 
Petitioner :- Dr. Rama Shanker
 
Respondent :- State Of U.P. Through Addl.Chief Secy.Chikitsa Shiksha &Ors.
 
Counsel for Petitioner :- Girish Chandra Verma
 
Counsel for Respondent :- C.S.C.,Abhinav Trivedi
 

 
Hon'ble Manish Kumar,J.

1. Heard learned counsel for the petitioner, learned Standing Counsel appearing for respondent no. 1 and Sri Abhinav N. Trivedi, learned counsel appearing for respondent nos. 2 and 3.

2. By means of the present petition, the petitioner has prayed for a mandamus commanding the respondents to pay him salary as admissible to a Professor in King Georges Medical University, Lucknow (for short 'KGMU') along with Academic Grade of Rs.10500/- from the date of petitioner's promotion as Professor in the Department of Trauma (Surgery), KGMU i.e. w.e.f. 23.08.2018.

3. The identical controversy stands decided by the Court vide its judgment dated 6.11.2019 in bunch of writ petitions, the leading petition being Service Single No.21538 of 2019. This fact is also not denied by the learned counsel for the KGMU. In the above circumstances, it will serve no useful purpose to keep the matter pending in this Court which both parties agree that it may be finally decided at this stage itself.

4. Learned counsel for the petitioner contends that after long working in KGMU the petitioner through an order dated 23.08.2018, a copy of which is Annexure-11 to the petition, had been granted personal promotion from the post of Associate Professor to Professor in the Department of Prosthodontics, of the University. However, at the time of fixation of pay, it was provided that the petitioner was to be given personal promotion in Pay Band-4 of Rs.37400-67000 plus Academic Grade Pay of Rs.10000/- with immediate effect.

5. Learned counsel for the petitioner contends that in terms of the Government Order dated 11.08.2015, a copy of which is Annexure-6 to the petition, the pay scale for the post of Professor has been indicated to be Rs.37400-67000 with Academic Grade Pay of Rs.10500/- and consequently there cannot be any occasion for the respondents to not grant the said Grade Pay of Rs.10500/- to the petitioner.

6. On the other hand, Sri Abhinav N. Trivedi, learned counsel appearing for respondent nos. 2 and 3, argues that as the Government Order dated 11.08.2015 categorically provides in Clause 5 that the first Statute of 2011 of the Medical University are to be amended in terms of the Government Order consequently till such time the amendment is made (which has only been made in March 2019) consequently the petitioner would not be entitled for Grade Pay of Rs.10500/- prior to amendment made in the Statute. It is also contended that as the petitioner has not completed requisite period of service for grant of personal promotion as Professor consequently he would not be entitled for the benefit of the said Government Order.

7. To this, learned counsel for the petitioner has placed reliance on a Division Bench judgment of this Court in the case of Dr. Seema Mehrotra vs. King George's Medical University, U.P., Lucknow and others passed in Writ Petition No.4660 (SB) of 2017 decided on 27.04.2017 and affirmed with the dismissal of the SLP vide Diary No.22608 of 2017 on 28.08.2017, copies of which have been filed as Annexures-2 and 3 respectively to the petition, to contend that so far as the first objection raised by Sri Trivedi is concerned, the same has been considered threadbare by the Division Bench of this Court and it has been held that the personal promotion depends upon the length of service as well as qualifications as prescribed under Section 2(9) of the University Act which the petitioner fulfils. So far as the second aspect of the matter that in terms of the Government Order dated 11.08.2015 the statute has not been amended, it is contended that a perusal of the first statute of 2011, a copy of which has been filed as Annexure SCA-1 to the short counter affidavit by the respondent University would itself indicate that Clause 10.01(12) itself provides that the salary of the Teachers shall be determined by the Government of U.P. from time to time consequently once the salary has been determined in terms of the Government Order dated 11.08.2015, thus, even if the statute has not been amended, the same would not stand as an impediment in the petitioner being granted the Grade Pay of Rs.10500/-.

8. Heard learned counsel for the contesting parties and perused the records. From perusal of the records, it clearly comes out that the petitioner has been promoted as Professor in the Department of Trauma (Surgery) of the University vide order dated 23.08.2018. However, while fixing the pay of the petitioner as Professor the same has been fixed in the Pay Band-IV of Rs.37400-67000 with Academic Grade Pay of Rs.10000/-. As per the Government Order dated 11.08.2015, the post of Professor carries the pay scale in Pay Band-IV of Rs.37400-67000 with Academic Grade Pay of Rs.10500/-. The contention on the part of the respondents that the Grade Pay of Rs.10500/- cannot be granted to the petitioner as requisite years of service have not been completed by the petitioner cannot be said to be a valid ground taking into consideration the judgment of the Division Bench of this Court in the case of Dr. Seema Mehrotra (supra) wherein this Court has held as under:-

"In view of the aforesaid provisions, personal promotion depends upon length of service as well as qualifications as may be prescribed Section 2(9) of the University Act defines the term ''prescribed' as "prescribed by the Statute". Thus, the definition of term ''prescribed' leads us towards the Statute 10.03(1) of the First Statute of the University, which, after referring to Section 36(1), provides that personal promotion to the post of Professor or to the post of Associate Professor is to be given as per the norms of the MCI or the Dental Council of India, as the case may be. Sub clause (c) of clause (v) of the Statute 10.03(1) further provides that for personal promotion to the post of Professor or Associate Professor, the teacher concerned must possess the requisite qualifications and teaching experience as prescribed by the MCI/Dental Council of India. The provisions made by the MCI are mandatory in the matter of personal promotion, which do not provide any such requirement of 10 and 13 years as stated by the Vice Chancellor. It is also contrary to the provisions of the Minimum Qualifications for Teachers in Medical Institutions Regulations, 19983, which prescribes the minimum qualification as three years teaching experience for Lecturer being designated as Assistant Professor, four years for promotion of an Assistant Professor to the post of Associate Professor and three years for promotion of an Associate Professor to the post of Professor, respectively. The posts of Assistant Professor, Associate Professor and Professor are distinct and different and so are the teaching experience prescribed for each of these posts. The MCI has, as regards teaching experience under the Regulations, 1998, provided that the experience gained as Resident/Registrar/Tutor/Demonstrator during training as a post-graduate student i.e. as Junior Resident (JR)-I, II and III is valid for appointment as Assistant Professor.

In view of the aforesaid submissions, it is obvious that the petitioner's personal promotion to the post of Associate Professor, which was made on 05.11.2011 w.e.f. the date of joining would be effective from the date of eligibility i.e. 27.07.2011 after completion of four years' service as Assistant Professor without any financial benefit of arrear payment for retrospective period. Though it was settled by the University that personal promotion is to be effective from the date of eligibility but the University did not adhere to this at the time of making the personal promotion of the petitioner to the post of Professor. Later on when the petitioner was promoted to the post of Professor, her promotion was deemed to be effective from the date of joining not from the date of eligibility.

The State Government has made an effort to justify their action by classifying the post of Professor in two categories. One was clothed with full salary of Professor as it provided under the Government Order dated 11.08.2015, whereas next other has been designated as Professor Junior Grade (Additional Professor) and the distinct pay band as well as academic grade has been provided, which are available after completion of three years' service on the post of Associate Professor. However, the respondents have failed to substantiate this classification with any of the provisions of Statute of the University as well as the provisions made by the MCI/Dental Council of India. Statute 10.01 of the University has categorized the post of teachers in the following manner:

"Statute 10.01.- (1) ...

(2) ...

(3) The following shall be the different categories/statutory positions of the University teachers/faculty members:-

(a) Professor;

(b) Associate Professor;

(c) Assistant Professor/Lecturer."

Regard being had to the aforesaid submissions, we hold that the order dated 12.05.2016 issued by the Registrar of the University is unsustainable being in violation of the provisions of the First Statute of the University as well as Regulations framed by the MCI and the Government Order dated 11.08.2015, therefore, we hereby quash the order dated 12.05.2016 passed by the Registrar of the University. We further issue a writ of mandamus to the respondents to reconsider the petitioner's matter of personal promotion to the post of Professor, Associate Professor and Assistant Professor strictly in accordance with the Regulations framed by the MCI viz. Regulations, 1998 as amended in 2009 for determination of petitioner's minimum salary on the post of Professor in the Department of Obstetrics and Gynaecology in terms of Government Order dated 11.08.2015 in the Pay Band-4 of Rs.37400-67000 (minimum salary Rs.51600/-) and Academic Grade Pay of Rs.10500 w.e.f 04.09.2015."

From perusal of the aforesaid judgment, it clearly comes out that personal promotion to the post of Professor or to the post of Associate Professor is to be given as per the norms of the Medical Council of India or the Dental Council of India, as the case may be. Sub clause (c) of clause (v) of the Statute 10.03(1) further provides that for personal promotion to the post of Professor or Associate Professor, the teacher concerned must possess the requisite qualifications and teaching experience as prescribed by the MCI/Dental Council of India. The provisions made by the MCI are mandatory in the matter of personal promotion, which do not provide any requirement of requisite period of service for grant of personal promotion as has been indicated by the respondents in the counter affidavit more particularly when specific averment made in paragraph 14 of the writ petition of the petitioner being qualified and eligible for promotion on the post of Professor in terms of MCI regulations has not been denied by the respondents. Even otherwise, the order of personal promotion dated 23.08.2018 which is the resolution of the Executive Council has itself approved the recommendations of the Selection Committee of the promotion of the petitioner as Professor.

It would be pertinent to mention that the aforesaid judgment of Dr. Seema Mehrotra (supra) has already been affirmed with the dismissal of the SLP by the Apex Court through order dated 28.07.2017. Thus, the said ground is no longer open to be taken by the respondents while negating the claim of the petitioner.

So far as other ground taken by the respondents that as in terms of Clause 5 of the Government Order dated 11.08.2015 the first statute has not been amended, suffice to state that the first statute itself more particularly Clause 10.01(12) categorically provides that the salary of the Teachers shall be as determined by the Government of U.P. from time to time and once in terms of the Government Order dated 11.08.2015 the salary of the post of Professor has been determined to be in Grade Pay IV of Rs.37400-67000 with Academic Grade Pay of Rs.10500/- consequently there cannot be any occasion for the respondents to fix the salary of the petitioner in Pay Band IV of Rs.37400-67000 with Academic Grade Pay of Rs.10000/-.

9. Thus, taking into consideration the aforesaid discussions both the objections taken by the respondents for negating the claim of the petitioner cannot be said to be justified.

10. Accordingly, the writ petition is allowed. A writ of mandamus is issued directing the respondents to consider the claim of the petitioner for grant of Grade Pay of Rs.10500/- on the post of Professor in Pay Band IV of Rs.37400-67000 with effect from the date of his promotion i.e. 23.08.2018.

11. Let such consideration be done taking into consideration the aforesaid observations within a period of four weeks from the date of receipt of a certified copy of this order.

12. Consequences to follow.

Order Date :- 4.1.2021

S. Kumar