Dr. Kamal Kumar Pandey vs State Of U P And 3 Others
2022 Latest Caselaw 1058 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- WRIT - A No. - 812 of 2022
 

 
Petitioner :- Dr. Kamal Kumar Pandey
 
Respondent :- State Of U P And 3 Others
 
Counsel for Petitioner :- Seemant Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajiv Joshi,J.

Heard Sri Seemant Singh, learned counsel for the petitioner and learned Standing counsel for the State-respondents.

This petition has been filed praying for directing the Director of Education (Higher), U.P., Prayagraj to include the services of the petitioner rendered on the post of Assistant Professor in subject Physics in substantive capacity in Government Vivekanand Post Graduate College, Manendragrah, District- Koriya, Chhattisgarh towards the services rendered by the petitioner while working on the post for Assistant Professor subject Physics in Shri Jai Narain Mishra Post Graduate College, Charbagh, Lucknow.

Further prayer has been made to direct the respondents to grant promotions to the petitioner by way of granting Senior Scale in Selection Grade and other consequential benefits under Career Advancement Scheme, after including the previous services rendered by the petitioner in another college, substantively on the post of Assistant Professor subject Physics with the services rendered as Assistant Professor in Physics substantively in Shri Jai Narain Mishra Post Graduate College, Charbagh, Lucknow.

Learned counsel for the petitioner has relied upon the UGC Regulation On Minimum Qualification For Appointment to Teachers and Academic Staff in Universities and College and Measure for Maintenance of standards in Higher Education dated 18.07.2018 and has relied upon regulation 10 which is as follows :-

"10.0 COUNTING OF PAST SERVICES FOR DIRECT RECRUITMENT AND PROMOTION UNDER CAS

Previous regular service, whether national or international, as Assistant Professor, Associate Professor or Professor or equivalent in a University, College, National Laboratories or other scientific/professional Organizations such as the CSIR, ICAR, DRDO, UGC, ICSSR, ICHR, ICMR, DBT, etc., should be counted for direct recruitment and promotion under CAS of a teacher as Assistant Professor, Associate Professor, Professor or any other nomenclature these posts are described as per Appendix III Table 1 to 5 provided that:

(a) The essential qualifications of the post held were not lower than the qualifications prescribed by the UGC for Assistant Professor, Associate Professor and Professor as the case may be.

2. (b) The post is/was in an equivalent grade or of the pre-revised scale of pay as the post of Assistant Professor (Lecturer) Associate Professor (Reader) and Professor.

3. (c) The candidate for direct recruitment has applied through proper channel only.

4. (d) The concerned Assistant Professor, Associate Professor and Professor should possess the same minimum qualifications as prescribed by the UGC for appointment to the post of Assistant Professor, Associate Professor and Professor, as the case may be.

5. (e) The post was filled in accordance with the prescribed selection procedure as laid down in the Regulations of University/State Government/Central Government/ Concerned Institutions, for such appointments.

6. (f) The previous appointment was not as guest lecturer for any duration, or an ad hoc or in a leave vacancy of less than one-year duration. Ad hoc or Temporary service of more than one year duration can be counted provided that:

1. (i) the period of service was of more than one year duration;

2. (ii) the incumbent was appointed on the recommendation of duly constituted Selection Committee; and

3. (iii) the incumbent was selected to the permanent post in continuation to the ad hoc or temporary service in the existing/previous organization.

7. (g) No distinction should be made with reference to the nature of management of the institution where previous service was rendered (private/local body/Government), was considered for counting past services under this clause."

His submission is that as per the aforesaid regulation the petitioner is entitled to the reliefs prayed in the writ petition.

Learned Standing counsel has placed before this Court the instructions received from the Director of Education (Higher), U.P., Prayagraj wherein it has been stated that there is no government order providing for pay protection by adding the earlier services rendered by the petitioner in other institutions. It has been further stated that in view of UGC Regulation 2010 various government orders have been issued according to which the conditions provided in UGC Regulation 2010 are to be followed.

Counsel for the petitioner has rejoined and has submitted that UGC Regulation 2010 have been superseded by regulation of 2018 which has been adopted by the State Government vide Government Order dated 28.06/2019 (Annexure 15 to the writ petition). He has further relied upon the judgment of the Division Bench of this Court in the case of Dr. Sunil Vikram Singh Vs. State of U.P. and Others, Civil Misc. Writ Petition No. 23342 of 2009, wherein this Court has held as follows :-

"9. Heard S/Sri Vimlendu Tripathi, Intekhab Alam Khan, N.K. Mishra, Sudhir Dixit, learned counsel for the petitioners, S/Sri Anurag Khanna, V.K. Upadhyay, Anil Tiwari, learned counsel for the respondents and learned Chief Standing Counsel for the State-respondents, in both the connected petitions.

10. The submission of the learned counsel for the petitioners is that the impugned orders rejecting the representations of the petitioners is based on a Government Order dated 26.12.1988, a copy whereof has been filed as Annexure-21 to the writ petition and in fact the subject matter of the said Government Order is such that the same will not applicable on the facts of the present case. A perusal of the Government Order dated 26.12.1088 would reveal that the subject dealt with the transfer of teachers from one affiliated/associated/private aided P.G. College to another college and with regard to pay protection on such transfers. Thus the said Government Order will not apply in the case of the petitioner as the petitioner is seeking the inclusion of that period of service as a Lecturer which has been rendered outside the State of U.P. This court is in complete agreement with the submissions of the learned counsel for the petitioners that the respondents have wrongly non suited the petitioner on the strength of the aforesaid Government Order. Accordingly the impugned order dated 26.12.1988 (Annexure-21 to the writ petition) becomes vulnerable in law and is liable to be set aside.

11. The next submission of the learned counsel for the petitioners is that service benefits on the post of lecturer (senior scale) and lecturer (selection grade) require 4 years and 5 years length of service respectively and that there is neither any requirement either in the U.P. State University's Act 1973 or in the First Statute of the University or in the Government Order dated 13.3.2001 for Career Advancement Scheme that the earlier substantive service should be only from the Universities and the Colleges situate within the State of U.P.

12. Learned counsel for the petitioners have substantiated their arguments with a decision of the Apex Court reported in AIR 1988 SC 335 Shardhendu Bhushan Vs. Nagpur University wherein the Hon'ble Apex Court has held that in terms of the criteria laid down by the University Grant Commission itself, a teacher is entitled to the benefits of higher grade if he has the teaching experience of not less than 5 years. The emphasis is on the experience gained by a teacher while in the employment of a University or any other institution irrespective of its geographical location and not on the continuity of service. Even the U.G.C. scheme or the first statutes of the University do not refer to any continuity in service."

In view of the above consideration, it is clear that the petitioner is entitled to the relief claimed.

It is hereby directed that the Director of Education (Higher), U.P., Prayagraj will include the services of the petitioner rendered on the post of Assistant Professor in subject Physics in substantive capacity in Government Vivekanand Post Graduate College, Manendragrah, District- Koriya, Chhattisgarh towards the services rendered by the petitioner while working on the post for Assistant Professor subject Physics in Shri Jai Narain Post Graduate College,Charbagh, Lucknow. Respondents will also grant promotions to the petitioner by way of granting Senior Scale in Selection Grade and other consequential benefits under Career Advancement Scheme, after including the previous services rendered by the petitioner in other colleges, substantively on the post of Assistant Professor, subject Physics, with the services rendered as Assistant Professor in Physics substantively in Shri Jai Narain Mishra Post Graduate College, Charbagh, Lucknow within four weeks.

In view of above consideration, the writ petition stands allowed.

Order Date :- 11.4.2022

Akbar