Jammu & Kashmir High Court
Dr. Alka Sharma vs Dr. Rajinder Mishra on 6 February, 2024
Author: Puneet Gupta
Bench: Puneet Gupta
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 26.12.2023
Pronounced on 06.02.2024
LPA No.121/2021
CM Nos.7698/2022, 9034/2021,
9035/2021, 1605/2023
c/w
LPA No.44/2022
CM Nos.3175/2022, 3176/2022
LPA No.121/2021
1. Dr. Alka Sharma, aged 53 years
D/o Sh. P.R. Sharma
R/o H.No.65 B.C. Road, Opposite
Gurudwara Rehari Chungi, Jammu.
2. Dr. Vinay Chauhan, Aged 47 years,
S/o Sh. P.S. Chauhan,
R/o VPO Mansimbal, Tehsil Palampur
District Kangra, Himachal Pradesh
At Present: The Business School,
University of Jammu,
Baba Shah Ambedkar Road, Jammu. .....Appellants
Through: Mr. P.N. Raina, Sr. Advocate with Mr.
Ankit Dogra and Ms Deeksha Handoo,
Advocates.
versus
1. Dr. Rajinder Mishra
S/o Sh. Madan Mohan Mishra,
R/o H.No.250, Shastri Nagar, Jammu.
At Present: The Business School,
University of Jammu,
Baba Shah Ambedkar Road, Jammu
2. University of Jammu
through its Registrar
Baba Shah Ambedkar Road, Jammu
3. Vice Chancellor,
University of Jammu
Baba Shah Ambedkar Road, Jammu.
4. Assistant Registrar (Adm. TE/W)
University of Jammu
Baba Shah Ambedkar Road, Jammu.
2 LPAs 121/2021 c/w 44/2022
5. University Grants Commission,
through its Secretary,
Bahadur Shah Zaffar Marg, New Delhi. .....Respondent(s)
Through: Mr. Rahul Pant, Sr. Advocate, with Mr.
Dhruv Pant, Advocate for No.1.
Mr. Ajay Abrol, Advocate with Mr.
Manik Bhardwaj, Advocate, for 2 to 4.
Mr. Jatinder Choudhary, Advocate, for
No.5.
LPA No.44/2022
1. University of Jammu
through its Registrar
Baba Shah Ambedkar Road, Jammu.
2. Vice Chancellor,
University of Jammu
Baba Shah Ambedkar Road, Jammu.
3. Assistant Registrar (Adm. TE/W)
University of Jammu
Baba Shah Ambedkar Road, Jammu .....Appellants
Through: Mr. Ajay Abrol, Advocate with Mr.
Manik Bhardwaj, Advocate.
versus
1. Dr. Rajinder Mishra
S/o Sh. Madan Mohan Mishra,
R/o H.No.250, Shastri Nagar, Jammu.
At Present: The Business School,
University of Jammu. ...Respondent
2. University Grants Commission,
through its Secretary,
Bahadur Shah Zaffar Marg, New Delhi. ...Proforma Respondent
Through: Mr. Rahul Pant, Sr. Advocate, with Mr.
Dhruv Pant, Advocate for No.1.
Mr. Jatinder Choudhary, Advocate, for
No.2-UGC.
HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
Coram:
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
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JUDGMENT
Tashi Rabstan - J
1. Both these Letters Patent Appeals have been directed against the
judgment dated 29.10.2021 delivered by the learned Single Judge in SWP
No.1447/2017, whereby the learned Single Judge while quashing the
communication dated 06.03.2017 issued by the University Grants Commission
to the Assistant Registrar (Adm. TE/W), University of Jammu and the
consequential orders/communications of the University of Jammu dated
14.03.2017 and 30.05.2017, has held that the University of Jammu has wrongly
rejected the claim of writ petitioner-Dr. Rajindra Mishra for his promotion with
retrospective effect from 04.08.2009. Consequently, the University of Jammu
was directed to consider the claim of the writ petitioner-Dr. Rajindra Mishra
for grant of promotion to the post of Professor under the Career Advancement
Scheme (for short, CAS) with effect from 04.08.2009 afresh thereby putting
him at the relevant place in the seniority list after putting notice to the effected
candidates, who have already been promoted under the CAS in the intervening
period.
2. Since common question of facts and law are involved in the case and
both the appeals have been preferred against the same judgment of learned
Single Judge, as such both the appeals are being decided by this common
judgment.
3. The facts-in-brief, as gathered from the file, are that vide letter of
appointment dated 17.06.1992 issued by the Selection Committee of
University of Jammu, the writ petitioner was initially appointed as a Lecturer,
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Management Studies. He was promoted as a Senior Lecturer under Career
Advancement Scheme on 19.12.2000 and, as a Reader, on 04.09.2004.
4. Thereafter, vide order dated 07.12.2007 the effect of Senior Lecturer
was given with effect from 27.07.1998 and, as a Reader, with effect from
04.08.2001.
5. Again, vide subsequent order dated 17.12.2007, the order dated
07.12.2007 came to be modified, whereby the retrospective effect of promotion
of writ petitioner as a Senior Lecturer was changed to 04.08.2001 instead of
27.07.1998, and, as a Reader, the same was changed to 04.08.2003 instead of
04.08.2001.
6. The writ petitioner was promoted as Associate Professor with effect
from 04.08.2006. In October, 2015 the University of Jammu had issued
circular inviting applications from eligible candidates for promotion to the post
of Professor under Career Advancement Scheme as per UGC Regulations,
2010. Writ petitioner-Dr. Rajindra Mishra also applied for the same. The
Selection Committee, which met on 06.05.2016, found the writ petitioner to be
eligible for promotion from the date of his eligibility to the cadre, i.e., with
effect from 04.08.2009 when the writ petitioner completed his three years of
service as Associate Professor. The Selection Committee, however,
recommended that writ petitioner-Dr. Rajindra Mishra be given seniority from
the date he joins as a Professor in the Business School. However, the office of
Chancellor addressed a communication to UGC on 09.01.2017 seeking
clarification as to whether if a candidate does not apply three months in
advance prior to the due date of eligibility, whether such candidate can be
considered for retrospective promotion under Career Advancement Scheme.
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The UGC vide communication dated 06.03.2017 conveyed that the writ
petitioner cannot be considered for retrospective promotion under Career
Advancement Scheme as he did not apply with three months in advance of the
due date of his eligibility. Accordingly, Under Secretary to Governor's
Secretariat vide communication dated 14.03.2017 forwarded the clarification
furnished by the UGC to the Vice Chancellor, University of Jammu with a
request to reprocess the case in terms of the said clarification and UGC
Regulations, 2010. Thus, the Assistant Registrar (Adm TE/W), University of
Jammu vide communication dated 30.05.2017 suggested the writ petitioner to
take further necessary action.
7. Feeling aggrieved, writ petitioner-Dr. Rajindra Mishra filed SWP
No.1447/2017 before this Court. The learned Single Judge vide judgment dated
29.10.2021 quashed the communications dated 06.03.2017, 14.03.2017 and
30.05.2017 holding that the University of Jammu has wrongly rejected the
claim of writ petitioner for his promotion with retrospective effect from
04.08.2009. Consequently, the University of Jammu was directed to consider
the claim of writ petitioner-Dr. Rajindra Mishra for grant of promotion to the
post of Professor under the Career Advancement Scheme with effect from
04.08.2009 afresh thereby putting him at the relevant place in the seniority list
after putting notice to the effected candidates, who have already been promoted
under the CAS in the intervening period. Hence, the present appeals.
8. LPA No.44/2022 is filed by the University of Jammu. Whereas, LPA
No.121/2021 is filed by Dr. Alka Sharma and Dr. Vinay Chouhan. Though
both were not party respondent to the writ petition, they filed the LPA on the
ground that they were promoted against the post of Professor under Career
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Advancement Scheme prior to writ petitioner-Dr. Rajindra Mishra and if he is
given the retrospective effect of promotion against the said post with effect
from 04.08.2009, in that eventuality the writ petitioner would become senior to
them.
9. It was argued that in terms of the clarification furnished by the
University Grants Commission (for short, UGC), the writ petitioner is not
eligible to be considered for retrospective promotion against the post of
Professor under Career Advancement Scheme, because, as per Clause 6.3.1 of
UGC Regulations, 2010, the writ petitioner had failed to apply with three
months in advance of the due date of his eligibility. Therefore, the Governor's
Secretariat vide communication dated 14.03.2017 has rightly requested the
Vice Chancellor, University of Jammu to reprocess the case of writ petitioner
in terms of the clarification of UGC. It was also argued that the writ petitioner
was not meeting the criteria for his CAS promotion from the date of eligibility.
10. Heard learned counsel appearing for the parties, considered their rival
contentions and also perused both the appeal files.
11. Admittedly, it is not in dispute that writ petitioner-Dr. Rajindra Mishra
acquired the eligibility for promotion against the post of Professor under
Career Advancement Scheme on 04.08.2009, however, he was denied the
promotion with effect from the said date on the ground that in terms of Clause
6.3.1 of UGC Regulations, 2010, he had failed to apply with three months in
advance of the due date.
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12. In case of appellant-Dr. Alka Sharma, she claims to have acquired the
eligibility for promotion against the post of Professor in March, 2010.
However, it is also a fact that she too had failed to apply with three months in
advance of the due date, but, in her case, she was given promotion against the
post of Professor with retrospective effect from 23.03.2010 ignoring Clause
6.3.1 of UGC Regulations, 2010. Appellant-Dr. Alka Sharma claims to have
submitted her Performance Based Appraisal System (PBAS) under Career
Advancement Scheme for the post of Professor in the Business School on
09.09.2011, but she has not specifically mentioned as to on which date she
submitted her application. In response to an application filed under the Right to
Information Act, against the relevant column regarding the date of application
of appellant-Dr. Alka Sharma, the word "nil" has been mentioned by the
University of Jammu; meaning thereby the University of Jammu for obvious
reasons avoided to give specific information even under an application filed
under the Right to Information Act. Even, as claimed by appellant-Dr. Alka
Sharma, the Performance Based Appraisal System for the post of Professor
was submitted by her on 09.09.2011, i.e., after about one and a half years after
she acquired eligibility for the said post, however, in her case the writ
respondents took a different but favourable stand.
13. Further, the University of Jammu also filed an affidavit before the Writ
Court wherein it was deposed that one Dr. Romesh Kumar acquired the
eligibility for promotion against the post of Professor under Career
Advancement Scheme on 24.10.2012. He, however, applied on 29.08.2014,
i.e., about two years of acquiring the eligibility, but, in his case too, he was
given promotion with retrospective effect, i.e., from 24.10.2012. Thus, it leads
to the conclusion that number of candidates were being given promotions with
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effect from the date of their acquiring eligibility notwithstanding the fact that
they had not applied with three months in advance of the due date in terms of
Clause 6.3.1 of UGC Regulations, 2010.
14. Thus, the grievance of writ petitioner-Dr. Rajindra Mishra is that
although he is entitled to be promoted against the post of Professor under
Career Advancement Scheme (CAS) with retrospective effect from
04.08.2009, the University Grants Commission (UGC) vide communication
dated 06.03.2017 opined that he cannot be considered for retrospective
promotion under CAS as he had failed to apply with three months in advance
of the due date of his eligibility in terms of Clause 6.3.1 of UGC Regulations,
2010; meaning thereby, as per UGC, though the writ petitioner was fully
eligible to be promoted against the post of Professor from the date he applied
for the same but he cannot be given retrospective effect of promotion with
effect from 04.08.2009, i.e., when he attained the eligibility, as there was delay
in applying the same in terms of Clause 6.3.1 of UGC Regulations, 2010.
15. Now the question arises for consideration is: whether the writ petitioner
is entitled for retrospective effect of promotion from 04.08.2009, and, whether
Clause 6.3.1 of UGC Regulations, 2010 applies to writ petitioner or not?
16. Therefore, before proceeding further, it would be relevant to reproduce
hereunder Clause 6.3.1 of Regulation 6 of University Grants Commission
(Minimum Qualifications for Appointment of Teachers and other Academic
Staff in University and Colleges and other Measures for the Maintenance of
Standards in Higher Education) Regulations, 2010 (for short, UGC
Regulations, 2010) hereunder:
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"6.3.1 A teacher who wishes to be considered for promotion
under CAS may submit in writing to the university/college,
with three months in advance of the due date, that he/she
fulfils all qualifications under CAS and submit to the
university/college the Performance Based Appraisal
System proforma as evolved by the concerned university
duly supported by all credentials as per the API guidelines
set out in these Regulations. In order to avoid delays in
holding Selection Committee meetings in various positions
under CAS, the University/College should immediately
initiate the process of screening/selection, and shall
complete the process within six months from the date of
application. Further, in order to avoid any hardships,
candidates who fulfill all other criteria mentioned in these
Regulations, as on 31 December, 2008 and till the date on
which this Regulation is notified, can be considered for
promotion from the date, on or after 31 December, 2008,
on which they fulfill these eligibility conditions, provided
as mentioned above."
17. Admittedly, UGC Regulations, 2010 came into force with effect from
30.06.2010. Therefore, these Regulations are prospective in nature and do not
have any retrospective effect.
18. Clause 6.3.1 of Regulation 6 (supra) envisages two situations. So far as
first part of Clause 6.3.1 is concerned, the same is prospective in nature.
Therefore, Clause 6.3.1 to the effect that a teacher who wishes to be considered
for promotion has to apply three months in advance of the due date of his/her
eligibility would mean to have prospective effect, i.e., the said Regulation
would apply to those teachers who attain eligibility from the enforcement of
these Regulations and not before that. And, that is why, in the second part of
this Regulation, it has further been added that in order to avoid any hardships,
candidates who fulfill all other criteria mentioned in these Regulations, as on
31 December, 2008 and till the date on which this Regulation is notified, can
be considered for promotion from the date, on or after 31 December, 2008, on
which they fulfill these eligibility conditions, provided as mentioned above;
meaning thereby such candidates, who have already attained the eligibility
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prior to the enforcement of these Regulations from 31.12.2008, would be
entitled for promotion from the date they fulfill the eligibility
conditions/criteria provided in Regulation 6, i.e., Selection Procedures, as such
the bar of applying for promotion with three months in advance of the due date
would not apply in their case.
19. Further, in the second part of this Regulation, it has been provided that
in order to avoid any hardships, candidates who fulfill all other criteria
mentioned in these Regulations, as on 31 December, 2008 and till the date on
which this Regulation is notified, can be considered for promotion from the
date, on or after 31 December, 2008, on which they fulfill these eligibility
conditions. The term all other criteria in itself is sufficient to mean preclude
the criteria of applying three months in advance of the due date, or, in other
words, except the criteria of applying three months in advance of the due date,
the candidates who fulfill all other criteria mentioned in these Regulations, as
on 31 December, 2008 and till the date on which this Regulation is notified,
can be considered for promotion from the date they fulfill the eligibility
conditions. Therefore, the purpose of second part to Clause 6.3.1 was to
remove any type of ambiguity with respect to applying for promotion with
three months in advance of the due date, as mentioned in first part of this
Regulation.
20. Not only this, in the second part, it has specifically been written "in
order to avoid any hardships"; meaning thereby the very essence of adding
second part to Clause 6.3.1 was to protect those candidates from facing any
type of hardships, who attained the eligibility between 31.12.2008 to till UGC
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Regulations of 2010 were notified. Therefore, first part of Clause 6.3.1 cannot
be read in isolation, rather it has to be read in continuation of the second part.
21. More so, if those candidates, who attained the eligibility conditions from
31.12.2008 to till these Regulations were notified, also had to apply for
promotion with three months in advance of the due date of their eligibility,
then what was the purpose of adding second part to Clause 6.3.1. Therefore, in
such a situation, in terms of second part of Clause 6.3.1 of Regulation 6, the
writ respondents were bound to consider the case of writ petitioner for
promotion against the post of Professor under CAS with effect from
04.08.2009 when he attained the eligibility. Otherwise too, the writ
respondents have not questioned the eligibility conditions of writ petitioner;
rather they declined him the retrospective effect of promotion only on the
ground that he failed to apply with three months in advance of the due date.
22. Further, in terms of Clause 6.3.12(a) of the UGC Regulations of 2010, if
a candidate applies for promotion on completion of minimum eligibility period
and is successful, the date of promotion will be from that of minimum period
of eligibility. In the present case, it is not the case of writ respondents that the
writ petitioner was not fit for promotion when he acquired the minimum period
of eligibility on completion of three years of service as Associate Professor.
Therefore, applying the said clause too, admittedly, the writ petitioner acquired
the minimum period of eligibility for promotion on 04.08.2009 when he
completed the three years period as Associate Professor.
23. Further, the objective behind the Career Advancement
Scheme was that there could be a good number of teachers eligible for such
higher positions; yet they do not find chances of elevation even after serving in
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the same grade for decades. Therefore, the system of Career Advancement
Scheme was formulated to give avenues of promotion to the deserving
candidates, who do not get career advancement despite their eligibility and
merit due to the absence of vacancies at higher levels, which could lead to
frustration to them resulting in de-motivation. The CAS helps in retaining and
motivating these talented teachers. Therefore, in order to achieve the ends of
scheme, referred to above, an interpretation which helps the teaching
community to get promotion after completing the stipulated time must be
adopted. Any other interpretation which debars or makes a candidate ineligible
by taking a narrow and hyper technical interpretation will go against the spirit
of the scheme, thereby defeating the very purpose of the scheme.
24. Further, the University Grants Commission had filed an affidavit on
27.02.2021 before the High Court of Delhi in Writ Petition (Civil)
No.10744/2019 specifically deposing that the UGC had issued a Public Notice
dated 21.11.2014 clarifying that CAS shall be governed by the UGC
Regulations which are in operation on the date of eligibility and not on the date
of interview. Therefore, on this ground too, the petitioner is entitled for
promotion with effect from 04.8.2009 when he attained the eligibility for
promotion under CAS against the post of Professor.
25. We are also in agreement with regard to the findings of the learned
Single Judge that the writ petitioner has satisfactorily given the explanation of
delay, as when the writ petitioner was not found eligible for the post of
Professor under direct recruitment, he opted for the post of Professor under
CAS being already in service.
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26. Therefore, in view of what has been discussed above, we do not find any
ground to take a view other than the one taken by the learned Single Judge.
Accordingly, both the appeals fail and the judgment of learned Single Judge is
upheld. Connected CMs, accordingly, stand disposed of.
Jammu (Puneet Gupta) (Tashi Rabstan)
06.02.2024 Judge Judge
(Anil Sanhotra)
Whether the order is reportable ? Yes/No
Whether the order is speaking ? Yes/No
