Madras High Court
S.K. Nagarajan vs The Vice-Chancellor on 13 July, 2023
WA No.1807 of 2022 etc batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.07.2023
CORAM
THE HONOURABLE MR. JUSTICE R.MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
Writ Appeal Nos. 1807, 1808, 1809, 1811, 1812, 1813, 1814, 1815,
1816, 1817, 1819, 2004, 2005, 2011, 2013, 2087, 2088, 2089, 2090,
2091, 2092, 2093, 2094, 2095, 2096, 2097, 2098, 2099, 2100, 2101,
2102, 2103, 2104, 2105, 2106, 2107, 2108, 2109, 2110, 2111, 2112,
2113, 2114, 2115, 2116, 2117, 2118, 2120, 2121, 2122, 2123, 2124,
2125, 2426, 2427, 2428, 2429, 2430, 2431, 2432 and 2440 of 2022
and
C.M.P. Nos.15765 and 15791 of 2022
---
W.A. No. 1807 of 2022
S.K. Nagarajan .. Appellant
Versus
1.The Vice-Chancellor
Annamalai University
Annamalai Nagar
Chidambaram
Cuddalore District - 608 002
2.The Registrar
Annamalai University
Annamalai Nagar
Chidambaram
Cuddalore District - 608 002 .. Respondents
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W.A. No. 1807 of 2022:- Appeal filed under Clause 15 of the Letters Patent
against the order dated 27.04.2022 passed by the learned Judge in Writ
Petition No. 14434 of 2021.
For Appellants : Mr. K.M. Vijayan, Senior Advocate
for Mr. M. Velmurugan
in Writ Appeal Nos. 1807, 1808, 1809,
1811, 1812, 1813, 1814, 1815, 1816,
1817, 1819, 2426, 2427, 2428, 2429,
2430, 2431, 2432 and 2440 of 2022
Mr. K.M. Vijayan, Senior Advocate
assisted by Mr. R. Shivakumar
for M/s. K.M. Vijayan Associates
in Writ Appeal Nos. 2004, 2005, 2011,
2013, 2087, 2088, 2089, 2090, 2091,
2092, 2093, 2094, 2095, 2096, 2097,
2098, 2099, 2100, 2101, 2102, 2103,
2104, 2105, 2106, 2107, 2108, 2109,
2110, 2111, 2112, 2113, 2114, 2115,
2116, 2117, 2118, 2120, 2121, 2122,
2123, 2124 and 2125 of 2022
For Respondents : Mr. C.P. Arivudai Nambi
Standing Counsel for Annamalai University
in all the Writ Appeals
COMMON JUDGMENT
(Judgment of the Court was delivered by R.MAHADEVAN, J)
The writ petitioners are the appellants herein. They have filed these
writ appeals as against the common orders dated 27.04.2022 and 23.06.2022
passed by the learned Judge in two different batches of writ petitions viz.,
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WP.No.14422 of 2021 etc., cases and WP No.5964 of 2022 etc., cases,
respectively.
2.The case projected by the appellants herein in the writ petitions,
which are absolutely necessary and germane for disposal of these appeals, are
narrated hereunder.
3.(i) The appellants / Writ Petitioners were working as Assistant
Professor in the respondent University. During the course of their
employment, notification dated 08.08.2018 was issued inviting applications
from the eligible teachers and other academic staff of the University (except
medical and dental faculties) under the Career Advancement Scheme (CAS)
for promotion to the posts of Associate Professor as well as Professor, as the
case may be. It was indicated in the said notification that the applicant has to
submit his or her application for simultaneous promotion to the post of
Associate Professor as well as Professor under the CAS. As per the
notification, the eligible teachers are required to submit their application to
avail such promotion.
(ii) Pursuant to the aforesaid notification, the appellants / writ
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petitioners submitted their application(s) and participated in the selection
process. On scrutiny of the eligibility and other norms, they were called upon
to attend the interview before the Screening-cum-Evaluation Committee.
Accordingly, the appellants / writ petitioners appeared before the committee
and attended the interview for promotion. Thereafter, they were given
promotion to the post of Associate Professor and they are working in the said
promotional post till date.
(iii) The grievance of the appellants / writ petitioners before the writ
court was that the respondent University ought to have conferred them dual
or double promotion simultaneously to the cadre of Associate Professor and
to the post of Professor under the CAS. However, what was conferred to
them is promotion to the post of Associate Professor and they were deprived
of their further promotion to the post of Professor. The appellants / writ
petitioners therefore submitted a joint representation dated 03.12.2020 to the
respondent University, stating that they have applied for promotion to the
posts of Associate Professor as well as Professor under the CAS and that,
they are fully qualified to be promoted for the said posts. It was also stated in
the said representation that the Academic Performance Indicator (API) based
on Performance Based Appraisal System (PBAS) as prescribed by the UGC
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Regulations, have been fulfilled by them. However, the appellants / writ
petitioners were conferred with promotion only to the post of Associate
Professor and not to the post of Professor simultaneously, under the CAS and
thereby the parameters laid down by the UGC in adhering to CAS, have been
diluted. Thus, in the representation dated 03.12.2020, the appellants / writ
petitioners requested the respondent University to confer them further
promotion to the post of Professor under the CAS, forthwith.
(iv) As the joint representation dated 03.12.2020 submitted by the
appellants / writ petitioners was not considered, Writ Petition No. 643 of
2021 was filed by one Dr. N. Rajendra Prasad seeking to issue a Writ of
Mandamus directing the respondents to pass orders on the representation
dated 03.12.2020 with regard to the pending promotion as Professor under
CAS. Similar other writ petitions were also filed for a Mandamus before the
writ court. By separate orders dated 18.01.2021, all the writ petitions were
disposed of, by directing the respondents to consider the representation dated
03.12.2020 and pass orders on merits and in accordance with law. Pursuant
to the said direction, the Registrar, Annamalai University, second respondent
herein, passed an order dated 30.04.2021 rejecting the claim of the appellants
/ writ petitioners.
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(v) Assailing the aforesaid order of rejection, the appellants / writ
petitioners stated that as per the UGC Guidelines, 2010, Page No.7888, item
No. 6.3.10, "candidates shall offer themselves for assessment of promotion,
if they fulfil the minimum API scores indicated in the appropriate API
system tables by submitting an application and the required PBAS
proforma. They can do so three months before the due dates if they
consider themselves eligible. Candidates who do not consider themselves
eligible can also apply at a later date. In any event, the University
concerned shall send a general circular twice a year calling for
applications for CAS promotions from eligible candidates”.
(vi) According to the appellants / writ petitioners, they possess the
requisite qualification and are fully eligible for further promotion to the post
of Professor under the CAS. It was also submitted that the appellants /
petitioners have submitted separate applications for promotion to the post of
Associate Professor as well as to the post of Professor under the CAS. As per
the UGC regulations, the CAS promotion board has to be convened once in
six months, whereas, the respondents convened the meeting lastly only in the
year 2011 and after seven years, the Selection Committee called upon the
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appellants / writ petitioners to participate in the interview held in the year
2018. Even though the appellants / petitioners performed well in the interview
and also possessed the requisite qualification, they were conferred with
promotion only to the post of Associate Professor and not to the post of
Professor at the same time. When the evaluation was conducted
simultaneously for promotion to the post of Associate Professor as well as
Professor, conferring promotion only to the post of Associate Professor is
improper. The appellants / petitioners would also state that due to lapse on
the part of the University in conducting the meeting to confer promotion
within six months periodically, they were deprived of their legitimate right of
promotion in time; and that, the appellants / petitioners possess all the
requisite credentials, qualification and eligibility for being promoted to the
post of Professor, but promotion to the said post has been unceremoniously
denied even after three/four years. In view of such inaction on the part of the
respondents, most of the appellants / petitioners are still working as Associate
Professor without being promoted to the post of Professor.
(vii) It was further pleaded before the writ court by the appellants /
petitioners that as per the UGC/AICTC norms, an Assistant Professor
completing three years of service in the ACP shall be eligible for promotion to
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the post of Associate Professor and on completing three years in the post of
Associate Professor, he or she is eligible for further promotion to the post of
Professor. As the Screening-cum-Evaluation Committee was belatedly
constituted by the respondent University and interview was conducted after
seven years, the appellants / petitioners were made to continue in the same
post without being promoted to the further post. Thus, the delay on the part
of the respondent University in constituting the said Committee has highly
prejudiced the appellants / petitioners inasmuch the delay has made them to
stagnate in the feeder category post of Associate Professor even though they
possessed all the requisite qualification under CAS for promotion to the post
of Professor.
4.(i) A common counter affidavit was filed by the Registrar,
Annamalai University before the Writ Court stating inter alia that Annamalai
University was established under the Annamalai University Act, 1928 (Tamil
Nadu Act 1 of 1929). Due to maladministration by the erstwhile
Management, the Government of Tamil Nadu had taken over the University
and repealed the 1928 Act. Consequently, the new Act namely Annamalai
University Act, 2013 came into force from 25.09.2013. After the Government
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had taken over the University, an Administrator was appointed and he
submitted a report stating that there were more surplus staff, both teaching
and non-teaching, working in the University and decided to deploy the
surplus staff. Accordingly, a total number of 1401 staff, who were found to
be surplus, were deputed to various Government Arts and Science Colleges,
Government Engineering Colleges, Government Polytechnic Colleges and
State Universities by issuing various Government Orders. As far as non-
teaching staff is concerned, the sanctioned strength was 1110, however, 8433
appointments were made by the erstwhile management. Therefore, out of
8433 non-teaching staff, 4722 staff were found to be surplus. Out of 4722
staff, 3234 staff were deputed to Government Institutions and other
Departments. Thus, the mismanagement committed by the erstwhile
management was rectified by resorting to a due process and it had taken
much time. It is for this reason, the University could not convene the
Screening-cum -Evaluation Committee periodically, as required under the
CAS. On the other hand, the entire administrative machinery was involved to
rectify the defects made by the erstwhile management and to streamline the
activities of the University after it was taken over by the Government.
(ii) It was further submitted that as per Section 16 of the Annamalai
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University Act, 1928, since repealed, the Senate shall be the Supreme
Governing Body. Section 22 of the Old Act deals with powers of the
Governing body to take disciplinary action against the teaching and non-
teaching staff. By virtue of the new Act namely Annamalai University Act,
2013, the old Act was repealed and there is no Senate constituted under the
new Act and all the powers are vested with the Syndicate.
(iii) The counter affidavit further proceeds to state that the appellants
/ writ petitioners were appointed by the erstwhile Management on various
dates without following the norms. However, after the State Government had
taken over the management of the University, an advertisement was issued
under the CAS on 08.08.2018 inviting applications from eligible teachers and
other academic staff of the University under the CAS. The applications so
submitted along with documentary evidence were scrutinised by the
Screening- cum- Evaluation Committee comprising of (i) Vice-Chancellor
(chairperson) (ii) Dean of the Faculty concerned (member) (iii) Head of the
Department concerned (member) and (iv) Subject Expert (External)
(Member). The committee, upon scrutiny of the applications, zeroed in on
those who have fulfilled the requisite conditions prescribed by the University
Grants Commission as well as All India Council for Technical Education for
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upward movement in career from one stage to the other stage as per the
UGC/AICTE guidelines. The eligible candidates were interviewed and orders
were passed for upward movement from the post of Assistant Professor to
Associate Professor. As per the UGC/AICTE guidelines, those holding the
post of Associate Professor will become eligible for promotion to the post of
Professor only after serving a minimum period of three years. The committee,
after deliberations, unanimously decided that one promotion may be given at
a time as it felt that interview for two promotions simultaneously in the same
selection process is not a convenient one. The committee therefore decided to
conduct interview for promotion to the post of Associate Professor from
among the feeder category post of Assistant Professor. Such a decision taken
by the committee was also orally informed to all the eligible candidates
during the interview itself. Thus, the eligible candidates, after being informed
about the manner of the selection process, have consciously participated in
the interview conducted by the committee and obtained one higher promotion
as Associate Professor. None of the eligible candidates have objected to the
decision of the committee to confer only one promotion at a time. Therefore,
the appellants / petitioners, having participated in the interview and obtained
one upward promotion to the post of Associate Professor, cannot turn around
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and file these writ petitions to seek further promotion to the post of Professor
as well.
5. The learned Judge, upon hearing the rival submissions made, on
perusal of the documentary evidence and by placing reliance on the Full
Bench decision of this Court dated 04.02.2022 made in W.A. Nos. 3748 of
2019 [The State of Tamil Nadu v. C.Srinivasan], held that there is no
deemed upgradation or deemed promotion as contemplated in the relevant
Government Orders and the benefit of upgradation/promotion to the next
level can be granted/claimed only on completion of the qualifying service in
each level/rank as prescribed in the relevant Government Orders.
Accordingly, the learned Judge refused to grant the relief sought for by the
petitioners and dismissed the writ petitions viz., WP.No.14422 of 2021 etc.
batch, vide order dated 27.04.2022, the relevant passage of which, is
extracted below for ready reference:
"13. Further, as per UGC Regulations 6.3.2, candidates who do
not fulfill the minimum score requirement under API scoring system
proposed in the Regulation, as per Tables II (a and b) of Appendix III or
those who obtain less than 50% in the expert assessment of the selection
process will have to be re~assessed only after a minimum period of one
year.
14. The Government of Tamil Nadu Higher Educational
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Department has issued G.O.(D)No.153, Higher Education (K1)
Department dated 25.06.2021 appointing Two Member Committee to
conduct an enquiry with regard to any irregularity while implementing
the promotion under CAS in Salem Periyar University, Madurai
Kamarajar University and Annamalai University. The said Committee
conducted the enquiry and they are about to file a report to the
Government. The said Committee after conducting a detailed enquiry on
03.12.2021 in the respondents University and other staff members
including the petitioners. As per 6.4.8. of the UGC Regulations, a
Associate Professor completing 3 years of service in Stage 4 possessing
as Ph.D. Degree in the relevant discipline shall be eligible to be
appointed and designated as a Professor and be placed in the higher
cadre (Stage 5) subject to satisfying the required credit points as per API
based PBAS Methodology provided in Table I - III of Appendix IV.
According to the respondents, the petitioners did not possess 3 years
teaching experience as Associate Professor for getting promoted as
Professor.
15. Let this Court considers the decisions relied on by the learned
counsel for the petitioners. In State of Tirupur & Others v. K.K.Roy
[(2004) 9 SCC 65], it was held that State cannot escape from its
constitutional obligations and take a stand that the employee accepted the
offer of appointment knowing well that there was no avenue for
promotion and in such cases, principle of estoppel, inapplicable. In
Madras Institute of Development Studies & Another v.
K.Sivasubramaniyan & Others [(2016) 1 SCC 454] it was held that
where an aspirant takes part in selection process without any demur, he
cannot question it later. In Union of India v. Pushpa Rani and Others
[(2008) 9 SCC 242] it was held that matters relating to creation /
abolition of posts, formation / restructuring of cadres, sources / mode of
recruitment, prescription of qualifications, selection criteria, evaluation
of service records, are matters which fall in employer-s domain. Judicial
Review comes into play only if State Action is contrary to constitutional
or statutory provisions, or is patently arbitrary or vitiated by mala fides.
16. The decisions relied on by the learned counsel for the
petitioner will not apply to the facts of the present case. In the case on
hand, the question is not with regard to denial of promotion, but with
regard to grant of two stage~promotion. Further in the case on hand,
there is no explicit provision under the State or Regulation for grant of
two stage promotion and as such it cannot be said to be contrary to
constitutional or statutory provisions.
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17. The Full Bench decision of this Court dated 04.02.2022 made
in W.A.No.3748 of 2019 [The State of Tamil Nadu v. C.Srinivasan] relied
on by the learned standing counsel for the respondents lay down the
proposition that “there is no deemed upgradation or deemed promotion
contemplated in the relevant Government Orders and the benefit of
upgradation / promotion to the next level can be granted / claimed only
on completion of the qualifying service in each level / rank as prescribed
in the relevant Government Orders.” In view of the Full Bench decision
of this Court, unless the petitioner acquire minimum qualifying service of
3 years as Associate Professor, he cannot claim promotion as Professor.
18. In the absence of specific regulation under UGC or
Annamalai University, the claim of the petitioner for two stage / double
promotion cannot be legally sustainable. The petitioners also cannot seek
the benefit of Doctrine of Estoppel or Doctrine of Acquiescence, based on
the evaluation of the Screening / Selection Committee informing the
petitioners to appear for the selection process / interview for promotion
under CAS. The petitioners have not produced any materials to
substantiate that they have got three years teaching experience as
Associate Professor or any Statutory regulations of UGC or Annamalai
University in order to claim simultaneous promotion in the same
selection / interview as Professor. Therefore, this Court has no hesitation
to hold that in the absence of any specific provision under UGC
regulations, the claim of the petitioners, seeking two stage promotion /
double promotion under CAS cannot be considered.
19. In the light of the aforesaid facts and discussions, this Court
does not find any reason to interfere with the impugned orders passed by
the second respondents in Official Memorandum No.C2/2021 dated
30.04.2021 and 12.07.2021 and finds no merit in these writ petitions. In
view of the dismissal of the writ petitions challenging the impugned
notification of the second respondent dated 30.04.2021 on merits, the
prayer for Mandamus to consider the petitioners representation dated
03.12.2020 cannot be entertained and are liable to the rejected.
20. In the result, all these Writ Petitions stands dismissed. No
costs. Consequently, connected miscellaneous petitions are also
dismissed."
Following the aforesaid order dated 27.04.2022, the learned Judge dismissed
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another batch of writ petitions viz., WP.No.5964 of 2022 etc., cases on
23.06.2022. Both the orders passed by the writ court are under challenge in
these appeals, at the instance of the writ petitioners.
6.(i) Mr. K.M. Vijayan, learned Senior counsel appearing for the
appellants would, at the outset, submit that denial of promotion to the post of
Professor by the respondents is contrary to the UGC Guidelines for
promotions under CAS. According to the learned Senior counsel, promotion
under CAS is a designation conferred upon the teaching faculty, who
achieves the requisite qualification and experience as envisaged by UGC. As
per the guidelines issued by the UGC, the promotion committee or the
Evaluation Committee ought to have been constituted once in six months, but
in this case, such committee was constituted belatedly i.e., after seven years.
Thus, the administrative delay on the part of the respondent University in
convening the Departmental Promotion Committee or Evaluation Committee
to confer promotion to eligible aspirants under the CAS should not be put
against the appellants / writ petitioners to get their legitimate promotion. The
so-called decision taken by the Committee to confer only one promotion and
that, it was informed to the candidates attending interview orally is unjust
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and arbitrary. The appellants / petitioners have possessed the requisite
qualification including API Score and PABS, which were not considered by
the respondents while denying them promotion to the post of Professor.
(ii) The learned Senior counsel for the appellants invited the
attention of this Court to the UGC Regulations on minimum qualification for
appointment of teachers and other academic staff in Universities and Colleges
and measures for the maintenance of standards in Higher Education, 2018. In
Clause 6.3 (I) of the said Regulations, falling under the head "Assessment
Criteria and Methodology" it was mentioned as follows:
"I. A teacher who wishes to be considered for promotion under CAS must
submit in writing to the university / college, with three months in advance
to the due date, that he/she fulfills 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
hardship, the candidates who fulfill all other criteria mentioned in these
Regulations, as on and till the date on which these regulations are
notified, can be considered for promotion from the date, on or after the
date, on which they fulfill these eligibility conditions."
(iii) By pointing out the above assessment criteria and methodology
drawn for promotion under the CAS, the learned Senior counsel for the
appellants submitted that CAS cannot be equated with regular promotion to
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be conferred to a person. While the departmental promotions are based on the
sanctioned post against vacancy, the Career Advancement Scheme, being a
personal promotion conferred to the incumbent holding a substantive
sanctioned post, upon superannuation of the individual incumbent, has to be
revert back to its original cadre. He would further submit that as mentioned
in clause 6.3 (I) it is mandatory on the part of the respondents to initiate the
process of screening/ selection and complete the process within six months
from the receipt of application. In other words, the Selection Committee has
to meet once in six months or twice in a year. When a statute prescribes a
particular thing to be done in a particular manner, it has to be done only in
such a manner and not in any other manner. When the statute prescribes the
convening of the Selection Committee once in six months, for whatsoever
reasons, the respondents cannot postpone or conduct such meeting at any
time as may be desired by them. In the present case, even as admitted by the
respondents, the committee did not meet for a period of seven years and by
virtue of such delay, the career of the appellants / petitioners, to claim the
promotional ladder, has been abruptly stopped and they were made to
continue in the lower post, even though they have acquired all the prescribed
qualifications for promotion to the further post. However, the learned Judge
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did not take note of the delay on the part of the respondents in convening the
Committee within the mandatory period of six months, for conferment of
promotion then and there and thereby diluting the guidelines and parameters
laid down by the UGC under the CAS and ultimately dismissed the claim of
the appellants / writ petitioners by the orders impugned herein. Stating so, the
learned Senior counsel prayed for allowing these appeals by setting aside the
orders passed by the learned Judge.
7.(i) Mr. Arivudainambi, learned standing counsel appearing for the
University contended that for promotion to the post of Professor, the
appellants / petitioners have to put in a minimum period of three years of
service in the post of Associate Professor. In the present case, even on the
same date when the petitioners were conferred with promotion to the post of
Associate Professor, they want them to be conferred with further promotion
to the post of Professor without even putting three years of service, as
mandated under the CAS. Such a claim is being made by the apepllants / writ
petitioners on the ground that the Screening-cum -Evaluation Committee has
not been constituted as mandated under the CAS. According to the learned
counsel, merely because there was a delay in convening the CAS Promotion
Board/Screening -cum -Evaluation Committee, it will not be a ground for the
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appellants to contend that they are entitled for successive promotion to the
posts of Associate Professor as well as Professor at the same time. In this
context, he placed reliance on the decision of the Honourable Supreme Court
in Sankar Mondal v. State of West Bengal and others [2022 SCC Online
SC 1800] wherein it was held as under:
"5. The fact that the advertisement was of the year 1999 and we are in
2022 i.e., 24 years hence itself is an impediment in any relief to the
appellant. However, that itself would not non-suit the appellant as learned
counsel for the appellant contends that the appellant is now about 45
years plus hence it is submitted that he still has time to serve out. The fact
however, remains that the impediment in the way of the appellant was the
lack of police verification report which subsequently went against the
appellant.
6. In our view, in a recruitment process, a candidate cannot be permitted
to approach for redressal, howsoever may be the genuineness of the
grievance, at any stage of time as there has to be a closure to the process
of recruitment. In case of an advertisement dated 1999, the appellant
cannot be permitted to plead that he was waiting for seven long years for
getting an appointing letter and then woke up to file the O.A. before the
State Administrative Tribunal. This itself is a ground to non-suit the
appellant.
7. In view of the aforesaid, we are not commenting on the factual
correctness of the police verification report which is sought to be disputed
by the appellant.
8. The appeal is accordingly dismissed."
(ii) The learned counsel for the respondents further submitted that
the appellants / writ petitioners have participated in the selection process
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knowing fully well that the selection process is confined to only one
promotion from the post of Assistant Professor to Associate Professor. The
appellants have also received the promotion conferred to them to have one
upward movement to the post of Associate Professor. However, after having
participated in the selection process and obtained promotion to one higher
level post, they have filed the present writ petitions questioning the manner of
selection process. Therefore, it is submitted by the learned counsel that the
appellants / writ petitioners are estopped from filing the same and the writ
petitions are not maintainable. The learned counsel for the respondents also
submitted that it is well settled that an aspirant, who had taken part in the
selection process consciously and also received promotion, cannot be
permitted to turn around and contend that the selection process is vitiated on
any count. In order to buttress this submission, the learned counsel placed
reliance on the decisions of the Honourable Supreme Court in Rakesh
Bakshi and another v. State of Jammu and Kashmir (Civil Appeal No.
235-236 of 2019 dated 22.01.2019) as well as in Ashok Kumar v. State of
Bihar [2017 (4) Supreme Court Cases 357] wherein it was held that when a
candidate consciously takes part in the selection process, then, challenge to
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the selection process/procedure is impermissible. It was also held that the
decision reached by the experts about suitability of a candidate, generally,
cannot be examined by the Court in exercise of power under Article 226 of
The Constitution of India, in absence of mala fides, bias or arbitrariness.
When an aspirant takes part in selection process without any demur, he
cannot turn around and question it later.
(iii) By pointing out the ratio laid down in the above decisions, the
learned counsel for the respondents University submitted that there was no
malice or motive or bias on the part of the respondents in not convening the
Screening cum Evaluation Committee. In the absence of any such allegation,
the writ petitions are not maintainable and the appellants have no locus
standi to file the same.
(iv) For the same proposition that the appellants / writ petitioners,
after having participated in the interview, cannot maintain the writ petitions,
the learned counsel appearing for the respondent University placed reliance
on the decisions of the Honourable Supreme Court in (i) Madras Institute of
Development Studies and another v. K. Sivasubramaniyan and others
[(2016) 1 Supreme Court Cases 454] and (ii) Mukul Kumar Tyagi v. State
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of Uttar Pradesh and others [(2020) 4 Supreme Court Cases 86] wherein
also, it was held that when a candidate consciously takes part in selection
process, he cannot turn around and question the selection process by filing a
writ petition under Article 226 of The Constitution of India.
(v) The learned counsel for the respondents further contended that
all the appellants / petitioners have participated in the selection process
without raising their little finger. They were also orally informed about the
manner in which the selection is going to take place and the purpose for
which interview is being conducted i.e., only one promotion and not for dual
promotion simultaneously. Therefore, the appellants / writ petitioners, having
participated in the selection process and attended the interview without any
protest, are not entitled to maintain these writ petitions. In any event, the
Syndicate is the apex body and its decision will bind on the appellants / writ
petitioners. The syndicate has passed a resolution No.21 dated 01.08.2018
deciding to give promotion to the teaching staff in Annamalai University
under CAS viz., to give only one promotion. Such a decision was also
approved by the Finance Committee in the meeting held on 26.04.2019 and
reiterated in the Syndicate meeting dated 10.05.2019. Thus, the appellants /
writ petitioners, having accepted the one promotion given to them, are
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estopped from seeking dual promotion in a single interview. It is further
contended that the writ petitioners without even serving in the promoted post
of Associate Professor, are claiming further promotion to the post of
Professor simultaneously, which is contrary to the guidelines laid down under
the CAS. Therefore also, the respondents are justified in passing the orders of
rejection, refusing to confer further promotion to the post of Professor,
simultaneously. In order to justify this submission, the learned counsel for the
respondents drew the attention of this Court to the minutes of the meeting
regarding Career Advancement Scheme (CAS) held on 18.01.2019 at 9.00
am in the Vice-Chancellor Chamber, Annamalai University wherein it was
resolved as follows:
"The following points are agreed upon by the Committee:-
3. As per UGC/AICTE norms, faculty members need to serve minimum
three years as Associate Professor to become eligible for promotion to
Professor post. Hence, the committee decides that one promotion may be
given at a time, and also the committee felt that interview for two
promotions simultaneously in the same Board of Selection is not a
conventional one.
4. Based on the above norms of UGC/AICTE, the committee unanimously
decided to interview for one promotion only (either Assistant Professor to
Associate Professor or Associate Professor to Professor) to those
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candidates who have applied for two promotions. This decision may be
informed to all other selection committee members as well as to the
candidates at the time of interview."
Thus, the decision of the Committee was informed to all the candidates who
attended the interview. The candidates also, without any protest attended the
interview and were given promotion to the post of Associate Professor or
Professor as the case may be. None of the candidates protested against the
decision of the respondent University which culminated in the minutes of the
meeting dated 18.01.2019. On the other hand, the writ petitioners without
any demur, having attended the interview, it is not open for them to turn
around and question the manner of selection or the denial of further
promotion to the post of Professor. Considering all these factors, the learned
Judge rightly dismissed the writ petitions filed by the appellants / writ
petitioners, by the orders impugned herein, which do not call for any
interference by this court.
8. We have heard the learned Senior counsel for the appellants as
well as the learned Standing counsel for the respondent University and also
perused the materials available on record.
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9. The question that arises for consideration in the present writ
appeals is whether the appellants are entitled to more than one promotion
simultaneously, under the Career Advancement Scheme prescribed by the
UGC. At the outset, it is not in dispute that the Annamalai University is
governed by the statutory regulations made by the University Grants
commission under Section 26 of the UGC Act. The UGC Regulations on
Minimum Qualifications for Appointment of Teachers and Other Academic
Staff in Universities and Colleges and Measures for the Maintenance of
Standards in Higher Education, 2010 as well as the Minimum Qualifications
for Appointment of Teachers and Other Academic Staff in Universities and
Colleges and Other Measures for the Maintenance of Standards in Higher
Education, 2018 (hereinafter referred to as the UGC Regulations) prescribe a
Career Advancement Scheme (CAS), while also mentioning in detail the
stages of promotion that the teaching faculty governed by the said regulations
may be given under the CAS as stated in the Regulations.
10. In this regard, it is to be seen that the Career Advancement
Scheme while prescribing upgradation of Grade Pay as well as granting
promotion is not strictly ‘promotion’ understood in the traditional meaning of
the concept. The career advancement scheme is aimed at granting an
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upgradation of pay as well as post on completion of a certain number of years
by each faculty member as well as on achievement/completion of certain
other parameters as prescribed under the Regulations. The very same UGC
Regulations also prescribe that the Screening- cum -Evaluation committee
which evaluates the applications of the faculty members in respect of
promotion under the CAS as well as conduct interviews in respect of
promotions to the post of Associate Professor as well as Professor and Senior
Professor, must meet every six months and applications should be called for
from the faculty members eligible under the scheme every six months. In the
present case, it is not in dispute that the CAS selection / Screening -cum -
Evaluation committee was not constituted for at least seven years and during
the said period, many number of faculty members had become eligible for
various posts of promotion as well as upgradation in pay on completion of
certain number of years in a particular post as well as on acquiring other
eligibility criteria which is required for promotion. As a result of CAS
evaluation and interview committees not being constituted for a number of
years, several faculty members who became eligible for more than one
promotion during the said period, had applied for promotion under the UGC
career advancement scheme for more than one stage of promotion, to which
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they became eligible under the Scheme.
11. Apart from these facts that have not been disputed by either of
the parties, the reasoning adopted by the Learned Judge while dismissing the
writ petitions, is that unless there is a specific provision under the UGC
Regulations that enables the University to grant dual or double promotion or
more than one promotion at a given point of time, in the absence of the
number of years of experience in the feeder post as prescribed under the
Regulations, such promotions cannot be permitted. More importantly, the
Learned Judge has placed reliance on the decision of the Full Bench of this
Court dated 04.02.2022 made in W.A. No. 3748 of 2019 [The State of Tamil
Nadu v. C.Srinivasan] that there is no deemed upgradation or deemed
promotion contemplated in the relevant Government Orders and the benefit of
upgradation/promotion to the next level can be granted/claimed only on
completion of the qualifying service in each level/rank as prescribed in the
relevant Government Orders.
12. In this connection, it must be seen that while the decision of the
Full Bench of this Court in C.Srinivasan's case has laid down that there can
be no deemed promotion to the next level, the said proposition of law was
rendered in the particular circumstances involved in the said case against a
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completely different factual backdrop. In the matter before the Full Bench,
the issue raised was upgradation to the post of Special Sub-Inspector of
police (SSI) on the basis and strength of specific G.O.s, wherein it was
unambiguously stated that on completion of specified qualifying period of
service (i.e.) 25 years as Head Constable, the latter would be eligible for
upgradation as SSI. The relevant portion of the judgment in C.Srinivasan
case is extracted hereunder for better understanding of the facts, in the
background of which, it came to be delivered:
“38. A careful reading of the Government Orders clearly brings
out the fact that there is no scope for any deemed upgradation. The G.Os.
makes it abundantly clear that the concerned Police Constable or Head
Constable, as the case may be, should have held the relevant post for a
fixed period of time in order to claim for upgradation. If the Police
personnel were aggrieved by such a stipulation, they ought to have
challenged the Government Orders. No one has chosen to challenge the
G.Os. and an attempt is being made to twist the G.Os. to suit their
requirement. This Court has to necessarily understand the G.Os. in the
plain language used in those G.Os. and see if the concerned Police
personnel is satisfying the requirement. When a benefit is conferred, the
requirements to get such a benefit must be satisfied. There is no scope for
a deemed satisfaction and what is expected is the actual satisfaction of the
requirements. The concerned Police personnel want these G.Os. to be
implemented in such a way that upon completing a fixed period namely 25
years of overall service, they would get upgradation as Grade I Constable
automatically and thereafter, as Head Constables automatically and
ultimately as SSI of Police also automatically. There is no indication in the
G.Os., for such automatic or deemed upgradation.
39. The Division Bench in V. Samy case at Paragraph 4 of the
Order has given a finding as if the actual service of 5 years (it should have
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been 10 years) as Head Constable is not required for upgradation as SSI
of Police. This finding of the Division Bench runs completely contrary to
the Mandatory requirement found in G.O. Ms. No. 937, dated 21.7.1998.
At Paragraph 4 of the concerned G.O., completion of 10 years’ service as
Head Constable is made mandatory, to be considered for upgradation to
the post of SSI of Police. In view of the same, the finding given by the
Division Bench in V. Samy case, which formed the basis for granting the
remedy, is not correct.
40. The finding of the later Division Bench in V. Ramachandran
case to the effect that 10 years of qualifying service in the rank of Head
Constable out of the total service of 25 years to be considered for the
upgradation to the post of SSI of Police is the correct view.
41. For the sake of clarity, we hold that the benefit of upgradation
to the next level of promotion can be granted only by taking into account
the completion of the qualifying service in each level of rank is prescribed
in the above G.Os. There is no scope for any deemed upgradation or
deemed promotion to the next level/rank and such an interpretation of the
G.Os. will cause violence to the plain language that has been used in those
G.Os. Every upgradation involves financial implications and the sanction
is accorded by the Finance Department as per the terms of the G.O., by
anticipating the exact increase in the expenditure by virtue of the
upgradation/promotion. If such deemed upgradation or deemed promotion
is read into the G.Os., it will not only go beyond the scope of G.Os., but
also will end up in granting the benefit to those persons, who are not
covered under the Government Order. The direct consequence will be that
there will be a huge outflow of expenditure than what was expected through
the beneficial scheme and it will put a lot of strain in the State's
exchequer.”
13. A reading of the above judgment would disclose that the facts
involved in that case are fundamentally different, as in the present case, the
UGC Regulations, 2010 would indicate the nature of promotions granted
under the CAS and also the date of promotion relating back to the date of
attaining eligibility for such promotion. The relevant Clauses of the UGC
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Regulations relating to CAS are extracted below for easy reference and
understanding:
“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.
6.3.2 Candidates who do not fulfill the minimum score requirement
under the API Scoring System proposed in the Regulations as per Tables
II(a and b) of Appendix III or those who obtain less than 50% in the expert
assessment of the selection process will have to be re-assessed only after a
minimum period of one year. The date of promotion shall be the date on
which he/she has successfully got re-assessed.
6.3.3 The Selection Committee specifications as delineated in Clauses
5.1.0 to 5.1.7 are applicable to all direct recruitments of Faculty Positions
and Career Advancement promotions of Assistant Professor to Associate
Professor and to that of Associate Professor to Professor.
6.3.4 CAS promotions from a lower grade to a higher grade of Assistant
Professor shall be conducted by a “Screening cum Evaluation Committee”
adhering to the criteria laid out as API score in PBAS in the Tables of
Appendix-III.
6.3.5 The “Screening cum Evaluation Committee” for CAS promotion of
Assistant Professors/equivalent cadres in Librarians/Physical Education
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from one AGP to the other higher AGP shall consist of:
6.3.5.1. For University teachers:
a. The Vice Chancellor as the Chairperson of the Selection Committee;
b. The Dean of the concerned Faculty;
c. The Head of the Department /Chairperson of the School; and
d. One subject expert in the concerned subject nominated by the Vice
Chancellor from the University panel of experts.
6.3.5.2 For College teachers:
a. The Principal of the college;
b. Head of the concerned department from the college;
c. Two subject experts in the concerned subject nominated by the Vice
Chancellor from the university panel of experts;
6.3.5.3 The quorum for these committees in both categories mentioned
above shall be three including the one subject expert/ university nominee
need to be present.
6.3.6 The Screening cum Evaluation Committee on
verification/evaluation of API score secured by the candidate through the
‘PBAS’ methodology designed by the respective university based on these
Regulations and as per the minimum requirement specified: (a) in Tables
II and III for each of the cadre of Assistant Professor; (b) in Tables V and
VI for each of the cadre of Physical Education and Sports; and (c) in
Tables VIII and IX for each of the cadre of Librarians shall recommend to
the Syndicate/ Executive Council /Board of Management of the University
about the suitability for the promotion of the candidate(s) under CAS for
implementation.
6.3.7 All the selection procedures outlined above, shall be completed on
the day of the selection committee meeting, wherein the minutes are
recorded along with PBAS scoring proforma and recommendation made
on the basis of merit and duly signed by all members of the selection
committee in the minutes.
6.3.8 CAS promotions being a personal promotion to the incumbent
teacher holding a substantive sanctioned post, on superannuation of the
individual incumbent, the said post shall revert back to its original cadre.
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6.3.9 The incumbent teacher must be on the role and active service of the
Universities/Colleges on the date of consideration by the Selection
Committee for Selection/CAS Promotion.
6.3.10 Candidates shall offer themselves for assessment for promotion, if
they fulfill the minimum API scores indicated in the appropriate API
system tables by submitting an application and the required PBAS
proforma. They can do so three months before the due date if they
consider themselves eligible. Candidates who do not consider themselves
eligible can also apply at a later date. In any event, the university
concerned shall send a general circular twice a year calling for
applications for CAS promotions from eligible candidates.
6.3.11 In the final assessment, if the candidates do not either fulfill the
minimum API scores in the criteria as per PBAS proforma or obtain less
than 50% in expert assessment, wherever applicable, such candidates will
be reassessed only after a minimum period of one year.
6.3.12 (a) If a candidate applies for promotion on completion of the
minimum eligibility period and is successful, the date of promotion will be
from that of minimum period of eligibility.
(b) If, however, the candidates find that he/she fulfills the eligibility
conditions at a later date and applies on that date and is successful,
his/her promotion will be effected from that date of application fulfilling
the criteria.
(c) If the candidate does not succeed in the first assessment, but succeeds
in the eventual assessment, his/her promotion will be deemed to be from
the later date of successful assessment.”
As such, the nature of promotions under the UGC Regulations relating to
CAS are a personal promotion and the specific provision in 6.3.12 (a) that if
a candidate applies for promotion on completion of the minimum eligibility
period and is successful, the date of promotion will be from that of minimum
period of eligibility, is evidence of the intention of the legislation to make the
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promotion effective from the date of acquisition of eligibility.
14. When the facts and circumstances involved in the present case
are fundamentally distinct and different from the facts involved in the case
that led to the decision of the Hon’ble Full Bench of this Court in
C.Srinivasan’s case, apart from the legal provisions under consideration
being completely different, that is to say that in C.Srinivasan's case, the
Government Orders had specified that only after completion of qualifying
period of service in the post of Head Constable, the incumbent would be
eligible for promotion to the post of Special Sub-Inspector of police; whereas
in the present case, the UGC Regulations very clearly mention that a person
is eligible to be promoted to a particular post as and when he acquires the
number of years/experience in the previous post and also states that a faculty
member will be eligible to be promoted to the said promotional post from the
date on which he becomes eligible for the same. Thus, it would clearly
indicate that the UGC Regulations intended that there should be time to time
advancement in the career of the faculty member once he completes certain
number of years along with acquisition of other eligibility criteria and the date
on which one should be given promotion, should be date back from the date
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of acquisition of eligibility. When such is the stark difference in the guidelines
which are the basis for deciding the issue, any reliance placed on the
decision of the Full Bench and applying it to the facts of the present case
would be inappropriate.
15. It is also a trite principle of law that the judgments are to be
read and understood in the particular facts and circumstances in which they
have been rendered and not as theorems of Euclid that will have universal
application irrespective of the circumstances in which they have been made.
The Hon’ble Supreme Court has in Haryana Financial Corporation and
Others v. Jagdamba Oil Mills and Others [(28.01.2002 - SC) :
MANU/SC/0056/2002], observed as follows:
“19. Courts should not place reliance on decisions without discussing as to
how the factual situation fits in with the fact situation of the decision on
which reliance is placed. Observations of Courts are not to be read as
Euclid's theorems nor as provisions of the statute. These observations must
be read in the context in which they appear. Judgments of courts are not to
be construed as statutes. To interpret words, phrases and provisions of a
statute, it may become necessary for judge to embark into lengthy
discussions but the discussion is meant to explain and not to define. Judges
interpret statutes, they do not interpret judgments. They interpret words of
statutes, their words are not to be interpreted as statutes. In London
Graving Dock Co. Ltd. v. Horton 1951 AC 737, Lord Mac Dermot
observed:
"The matter cannot, of course, be settled merely by treating the
ipsissima vertra of Willes, J. as though they were part of an Act of
Parliament and applying the rules of interpretation appropriate
thereto. This is not to detract from the great weight to be given to the
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language actually used by the most distinguished judges."
20. In Home Office v. Dorset Yacht Co. 1970 (2) All ER 294 Lord Reid
said, "Lord Atkin's speech..... is not to be treated as if it was a statute
definition. It will require qualification in new circumstances." Megarry, J.
in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a
reserved judgment of even Russell L.J. as if it were an Act of Parliament."
And, in Herrington v. British Railways Board (1972) 2 WLR 537 Lord
Morris said:
"There is always peril in treating the words of a speech or
judgment as though they are words in a legislative enactment, and
it is to be remembered that judicial utterances made in the setting
of the facts of a particular case."
21. Circumstantial flexibility, one additional or different fact may make a
world of difference between conclusions in two cases. Disposal of cases by
blindly placing reliance on a decision is not proper.
22. The following words of Lord Denning in the matter of applying
precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between
one case and another is not enough because even a single
significant detail may alter the entire aspect. In deciding such
cases, one should avoid the temptation to decide cases (as said by
Cardozo) by matching the colour of one case against the colour of
another. To decide, therefore, on which side of the line a case falls,
the broad resemblance to another case is not at all decisive."
XXX XXX XXX
"Precedent should be followed only so far as it marks the path of
justice, but you must cut the dead wood and trim off the side
branches else you will find yourself lost in thickets and branches.
My plea is to keep the path to justice clear of obstructions which
could impede it."
16. When the intention of the legislature is easy to gather from the
plain words employed therein, there is no reason for this court to interpret it
otherwise. Accordingly, when the very intention of the career advancement
scheme is more in the nature of personal promotion to be granted in order to
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avoid stagnation among the faculty members, and each achieves upgradation
in grade pay as well as promotion to the next post depending on the number
of years of service and they have put in along with acquiring other eligibility
criteria like API Scores, as well as completion of courses, as required under
the UGC Regulations, treating the same as an ordinary promotion where
qualifying period of service is required in each post, is contrary to the plain
terms as mentioned in the UGC Regulations, which are statutory regulations
under the UGC Act and are binding on every University. The fact that the
respondent University has not conducted the CAS Selection/Screening- cum
-Evaluation committee for the past so many years itself is a violation of the
UGC Regulations. While it is incumbent upon the University to conduct such
committee from time to time as required under the UGC Regulations, it would
be sheer injustice to the faculty members if the University while itself
violating the UGC Regulations, also deprives the faculty members of their
right to be considered for promotion which is a fundamental right as
enshrined under Articles 14 and 16 of the Constitution, apart from defeating
the very object of the UGC Career Advancement Scheme. One can imagine a
situation, for instance, if an Assistant Professor becomes eligible to be
appointed as Associate Professor in the year 2010 and if the CAS committee
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is not conducted till 2017, then, he will have lost his chance to be promoted
as Associate Professor for many years and his further promotion to the next
level post of Professor may never be granted if the CAS committee is not held
for another few years and the faculty member will be forced to retire at a
lower post inspite of being eligible for promotion. This would also mean that
the number of years of eligibility as mentioned in the Regulations will be
thrown to the winds. This example will expose the fallacy in the argument of
the respondent University.
17. At this juncture, the Constitution Bench judgment of the
Supreme Court in Ajit Singh and Others v. The State of Punjab and Ors.
[(16.09.1999 - SC) : MANU/SC/0575/19990] is of relevance and the
observation made thereunder is extracted below:
“22. We shall first deal with the fundamental rights under Articles 14 and
16(1) and then with the nature of the rights of the reserved candidates
under Articles 16(4) and 16(4A).
Articles 14 and 16(1): Is right to be considered for promotion a
fundamental right?
23. Article 14 and Article 16(1) are closely connected. They deal with
individual rights of the person. Article 14 demands that the "State shall not
deny to any person equality before the law or the equal protection of the
laws". Article 16(1) issues a positive command that "there shall be equality
of opportunity for all citizens in the matters relating to employment or
appointment to any office under the State". It has been held repeatedly by
this Court that Sub-clause (1) of Article 16 is a facet of Article 14 and that
-it takes its roots from Article 14. The said Sub-clause particularizes the
generality in Article 14 and identifies, in a constitutional sense "equality of
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opportunity" in matters of employment and appointment to any office under
the State. The word 'employment' being wider, there is no dispute that it
takes within its fold, the aspect of promotions to posts above the stage of
initial level of recruitment. Article 16(1) provides to every employee
otherwise eligible for promotion or who comes within the zone of
consideration, a fundamental right to be "considered" for promotion. Equal
opportunity here means the right to be "considered" for promotion. If a
person satisfies the eligibility and zone criteria but is not considered for
promotion, then there will be a clear infraction of his fundamental right to
be "considered" for promotion, which is his personal right.
"Promotion" based on equal opportunity and 'seniority' attached to such
promotion are facets of fundamental right under Article 16(1):
24. Where promotional avenues are available, seniority becomes closely
interlinked with promotion provided such a promotion is made after
complying with the principle of equal opportunity stated in Article 16(1).
For example, if the promotion is by rule of seniority-cum-suitability', the
eligible seniors at the basic level as per seniority fixed at that level and who
are within the zone of consideration must be first considered for promotion
and be promoted if found suitable. In the promoted category they would
have to count their seniority from the date of such promotion because they
get promotion through a process of equal opportunity. Similarly, if the
promotion from the basic level is by selection or merit or any rule involving
consideration of merit, the senior who is eligible at the basic level has to be
considered and if found meritorious in comparison with others, he will have
to be promoted first. If he is not found so meritorious, the next in order of
seniority is to be considered and if found eligible and more meritorious
than the first person in the seniority list, he should be promoted. In either
case, the person who is first promoted will normally count his seniority
from the date of such promotion. (There are minor modifications in various
services in the matter of counting of seniority of such promotees but in all
cases the senior most person at the basic level is to be considered first and
then the others in the line of seniority). That is how right to be considered
for promotion and the 'seniority' attached to such promotion become
important facets of the fundamental right guaranteed in Article 16(1).
Right to be considered for promotion is not a mere statutory right:
25. The question is as to whether the right to be considered for promotion
is a mere statutory right or a fundamental right.
26. Learned senior counsel for the general candidates submitted that in
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Ashok Kumar Gupta v. State of U.P. MANU/SC/1176/1997 : [1997] 3 SCR
269, it has been laid down that the right to promotion is only a "statutory
right" while the rights covered by Articles 16(4) and 16(4A) are
"fundamental rights". Such a view has also been expressed in Jagdish Lal
and some other latter cases where these cases have been followed. Counsel
submitted that this was not the correct constitutional position.
27. In this connection our attention has been invited to para 43 of Ashok
Kumar Gupta. It reads as follows:
It would thus be clear that right to promotion is a statutory right. It
is not a fundamental right. The right to promotion to a post or
class of posts depends upon the operation of the conditions of
service. Article 16(4) read with Articles 16(1) and 14 guarantees a
right to promotion to Dalits and Tribes as a fundamental right
where they do not have adequate representation consistently with
the efficiency of administration....before expiry thereof (i.e. 5 years
rule), Article 16(4) has come into force from 17.6.1995. Therefore,
the right to promotion continues as a constitutionally guaranteed
fundamental right.
28. A similar view was expressed in Jagdishlal and followed in some latter
cases. In the above passage, it was laid down that promotion was a
statutory right and that Articles 16(4) and 16(4A) conferred fundamental
rights.
29. In our opinion, the above view expressed in Ashok Kumar Gupta, and
followed in Jagdish Lal and other cases, if it is intended to lay down that
the right guaranteed to employees for being "considered" for promotion
according to relevant rules of recruitment by promotion (i.e. whether on
basis of seniority or merit) is only a statutory right and not a fundamental
right, we cannot accept the proposition. We have already stated earlier that
the right to equal opportunity in the matter of promotion in the sense of a
right to be "considered" for promotion is indeed a fundamental right
guaranteed under Article 16(1) and this has never been doubted in any
other case before Ashok Kumar Gupta, right from 1950.”
18. Further, the issue relating to participation in the selection
process and thereafter, being estopped from challenging the same will not
arise in the present case for the reason that the applications made by the CAS
aspirants will indicate that they have to be considered for different
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promotional posts depending upon their eligibility; they had made more than
one application, in cases, where, according to them, they were entitled for
double promotion; and they did not make any undertaking that they are
foregoing the next promotion by accepting one promotion offered to them.
Therefore, the judgements relied upon by the respondent University in
Rakesh Bakshi and another v. State of Jammu and Kashmir [Civil Appeal
No. 235-236 of 2019 dated 22.01.2019], Ashok Kumar v. State of Bihar
[2017 (4) Supreme Court Cases 357], Madras Institute of Development
Studies and another v. K. Sivasubramaniyan and others, [(2016) 1
Supreme Court Cases 454], and Mukul Kumar Tyagi v. State of Uttar
Pradesh and others [(2020) 4 Supreme Court Cases 86], do not deserve
application to the present case. This is more so as the notification indicates
that the applicant has to submit his or her application for simultaneous
promotion to the post of Associate Professor as well as Professor under the
CAS. As a matter of fact, on the basis of Clause 6.3.10 of the Regulations
stating that candidates shall offer themselves for assessment of promotion,
if they fulfil the minimum API scores indicated in the appropriate API
system tables by submitting an application and the required PBAS
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proforma, the appellants had submitted separate simultaneous applications
for promotion to the post of Associate Professor as well as to the post of
Professor under the CAS. Therefore, the contention of the respondent
University that since the appellants had participated in the process of
evaluation for promotion under the career advancement scheme, they cannot
now seek dual promotion, deserves to be rejected.
19. At this juncture, it is also pertinent to mention that unlike in the
case of ordinary promotions, the issue of seniority is not interlinked to the
promotions which are given to the faculty under the UGC career advancement
scheme. As such, there would be no ensuing problem of seniority being either
flouted or unsettled by granting of promotions to the teaching faculty on the
basis of their eligibility under the UGC Regulations from a retrospective date
from which they become eligible for the promotional post.
20. In view of the above analysis and reasoning, we hold that the
appellants are entitled to dual/ double promotion as long as they fulfil the
eligibility criteria as mentioned in the UGC Regulations, and they cannot be
denied their right to be considered for promotion on account of the inaction or
failure of the respondent University in conducting CAS promotions by
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constituting the Screening -cum -Evaluation Committee as required under the
Regulations. In other words, it is made clear that the appellants did not work
as Associate Professor for the required number of years, shall not stand in the
way of their being promoted to the post of Professor, if the promotion to be
given to them for the post of Associate Professor relates back to the date from
which their service being counted, would make them eligible for the post of
Professor or the next level promotional post.
21. In the result, all these writ appeals stand allowed. Consequently,
the orders impugned herein as well as in the writ petitions are set aside. The
respondent University is directed to consider the claim of the appellants
seeking further promotion to the post of Professor under the CAS and pass
necessary orders, within a period of three months from the date of receipt of a
copy of this judgment. No costs. Consequently, connected miscellaneous
petitions are closed.
(R.M.D., J) (M.S.Q., J)
13.07.2023
Index : Yes/No
Neutral Citation : Yes/No
Speaking/Non-Speaking Order
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rsh
To
1.The Vice-Chancellor
Annamalai University
Annamalai Nagar
Chidambaram
Cuddalore District - 608 002
2.The Registrar
Annamalai University
Annamalai Nagar
Chidambaram
Cuddalore District - 608 002
R. MAHADEVAN, J
and
MOHAMMED SHAFFIQ, J
rsh
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WA No. 1807 of 2022 etc., batch
13.07.2023
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