Dr.(Mrs) Anjali Pattanaik vs Berhampur University And
2023 Latest Caselaw 12927 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK


                  W.P.(C) No.16172 OF 2016

(An application under Articles 226 and 227 of the
Constitution of India)


  Dr.(Mrs) Anjali Pattanaik                          ...      Petitioner

                                  -versus-

  Berhampur University and
  others                                             ... Opposite Parties


Advocates appeared in the case through hybrid mode:

     For Petitioner                         : Mr. Kalyan Patnaik,
                                              Advocate

                                 -versus-

     For Opposite Party
     Nos.1,2 & 3                             : Mr.Anshuram Mishra
                                               Advocate

     For Opp.Party No.4                      : Mr.Sanjeev Udgata,
                                               Advocate.

     For Opp.Party No.5                      : Mr. J.K.Mishra,
                                                Sr. Advocate &
                                                Mr.P.C.Behera,
                                                Advocate
  ---------------------------------------------------------------------------
      CORAM:

                   JUSTICE SASHIKANTA MISHRA




                                                                 Page 1 of 26
                                 JUDGMENT

18.10.2023.

Sashikanta Mishra,J. The Petitioner was appointed as Lecturer

in Home Science on 7th December, 1984 in Berhampur

University. Prior to that she was working as Lecturer

in Home Science in an aided College namely, Sri

Satyasai College for Women, Bhubaneswar from 6th

December, 1982 to 4th December, 1984. On completion

of 8 years of service including her past service, she was

placed in the senior scale by order dated 9 th May, 1994

w.e.f. 6th December, 1990. By such time she had

completed one Orientation course from Utkal

University, which was from 24th October, 1989 to 22nd

November, 1989. She was also awarded Ph.D. degree

from Utkal University on 20th August, 1991. Thereafter

she completed second Orientation course from Utkal

University from 19th November, 1991 to 13th December,

1991 and first Refresher course from SNDT Women's

University, Bombay, from 7th November, 1994 to 26th

November, 1994. She also participated in National

Workshop on "Folkloristic" from 7th January, 1994 to

16th January, 1994 organized by Central Institute of

Languages, Mysore. On 12th April, 1994 she requested

the University authorities to forward her name for an

Orientation course being organized by Utkal University,

but the same was turned down by letter dated 3rd May,

1994 on the ground that she had already attended two

such courses as per the guidelines of U.G.C. The

selection committee of the University considered her

application for promotion to the post of Reader and

recommended her name which was finally approved by

the Syndicate. As such, the Petitioner was promoted to

the post of Reader by order dated 7th January, 1997

w.e.f. 6th December, 1995. As per circular dated 6 th

November, 2004 for promotion to the post of Professor,

the Petitioner applied for the same as by then she had

completed 8 years of service as Reader since 2003 and

had Ph.D. and D.Lit. Degree from Utkal University. The

Selection Committee recommended her name, which

was placed before the Syndicate Sub-committee and

the Syndicate for approval. Finally, the

recommendation was placed before the Chancellor after

approval was accorded by the syndicate. While the

matter stood thus, she was served with a show cause

notice issued by the Registrar of the University asking

her to show cause as to why the order of the Chancellor

shall not be implemented. The Chancellor had observed

that she was required to undergo 4 Refresher courses,

two before placement as Lecturer senior scale and two

before placement as Reader, but she had completed

only 3 Refresher courses. Being thus deficient of one

Refresher course, her further career advancement to

the post of Professor cannot be permitted till she fulfils

the stipulation of undergoing one Refresher course. The

Petitioner submitted her reply by letter dated 5th

January, 2007 that after being promoted as Reader she

had never received any communication from the

University authority to attend Refresher/Orientation

course and that her name was duly recommended by

the Syndicate after being scrutinized by the Syndicate

Sub-committee. Her promotion to the post of Reader

was never questioned. Subsequently, the Petitioner was

allowed to undergo Refresher course from 13th March,

2008 to 2nd April, 2008 organized by Utkal University.

Ultimately, by order dated 31st October, 2009 she was

promoted to the post of Professor w.e.f. 2nd April, 2008.

Thereafter she submitted representations to the

Chancellor to prepone her date of promotion to 6th

December, 2003, the date on which she was eligible.

After several reminders, her representation was

rejected by order dated 6th June, 2016. According to

the Petitioner, the so called deficiency in undergoing

Orientation/Refresher courses had been exempted by

the University authorities at the relevant time because

she possessed a Ph.D. degree. Therefore, the so- called

deficiency could not have been agitated after so many

years. In any case, she cannot be blamed for not

fulfilling the requirement because her request to permit

her to undergo Orientation/Refresher courses had been

turned down by the University authorities at the

relevant time. It is also stated that the Syndicate is the

competent authority in matters of promotion as per the

provisions of the Odisha University Act, 1989 and the

Chancellor is the Appellate authority. Therefore, the

Syndicate could not have recommended her case for

promotion to the Chancellor. On such facts, the

Petitioner has filed the present Writ Petition with the

following prayer;

"Therefore, it is prayed that your Lordships would be pleased to issue Rule Nisi calling upon the O.Ps. to show cause why the impugned order under Annexure-23 should not be quashed and why the promotion of petitioner should not prepone to 6.12.2003 when she is eligible for consideration, and if the Opposite Parties fail to show cause or show insufficient or false cause make the rule nisi absolute."

2. Separate counter affidavits have been filed by

Berhampur University, U.G.C. and the Chancellor. In

its counter, the Berhampur University, while not

disputing the facts has referred to the letter dated 14th

August, 2001 issued by the Chancellor requiring his

approval before issuing order of promotions under CAS

irrespective of the U.G.C recommendations.

3. The U.G.C. in its counter has reiterated that the

Petitioner is required to undergo 4 Refresher courses,

i.e. two before placement in the grade of Lecturer

Senior Scale and two before placement in grade of

Reader, but the Petitioner completed only three

Refresher courses. She was promoted to the grade of

Professor only when she completed the second

Refresher course. Reference has also be made to the

U.G.C. Notification, 1998 and in particular, Clause

7.2.0 (ii) and 7.4.1(v) and 7.7.0.

4. In the counter filed on behalf of the Chancellor, it

is stated that the requirement of having two

Refresher/Orientation courses for being placed in

Senior Scale and two such courses for being placed in

the scale of Reader is as per the Notification dated 3rd

November, 1989 of the Government of Orissa in the

erstwhile Education and Youth Services Department.

The Petitioner had only one Orientation course without

any Ph.D. as on 6th December, 1990 and therefore, she

was wrongly placed in the Senior Scale. Even at the

time of promotion to the post of Reader on 6 th

December, 1995 she was falling short of one

Refresher/Orientation course. Thus, as against the

overall requirement of 4 such courses there was

deficiency of one course. As regards the

recommendation of the Syndicate Sub-Committee for

promotion to the post of Professor w.e.f. 4th September,

2005, same was without assigning any reason and the

recommendation of the selection committee was

without mentioning the effective date of promotion.

Since the deficiency was detected at the time of

consideration of the recommendation, she was called

upon to show cause in response to which the Petitioner

did not dispute the same. It is further stated that the

relaxation as claimed by the Petitioner as per U.G.C.

circular is prospective in nature. Since the Petitioner

did not possess the required eligibility at the relevant

time no estoppel would operate prohibiting the

authorities from rectifying the same subsequently.

5. Heard Mr. Kalyan Pattanaik, learned counsel for

the Petitioner, Mr. Anshuram Mishra, learned counsel

for the Berhampur University (Opp.Party Nos.1,2 and

3), Mr. S. Udgata, learned counsel for the Chancellor

(Opposite Party No.4) and Mr. J.K.Mishra, learned

Senior counsel assisted by Mr. P.C. Behera, learned

counsel for the U.G.C. (Opposite Party No.5).

6. Mr. K. Pattanaik, learned counsel for the

Petitioner, would argue that the Petitioner was placed

in the Senior Scale and thereafter in the Reader scale

and by such time she had undertaken three

Orientation/Refresher course along with Ph.D. degree.

She was also awarded with D.Lit. in the year 2001.

Referring to the U.G.C. guidelines Mr. Pattanaik would

argue that in case of possession of Ph.D. Degree,

exemption from one Orientation course can be granted.

Therefore, considering his Ph.D. qualification along

with one Orientation course in 1991 and Refresher

course in 1994, she was rightly placed in the grade of

Reader w.e.f. 1995. The U.G.C. Notification on Revision

of Pay Scales, Minimum Qualifications for

Appointment of Teachers in Universities and Colleges

and other Measures for the Maintenance of Standards,

1998 (U.G.C. Notification) provides that a Lecturer with

Ph.D. degree is exempted from one Refresher course

for being placed in the Lecturer Senior Scale as per

Clause 7.2.0. Mr. Pattanaik further argues that even

otherwise non-attending the Orientation/Refresher

course cannot be a ground to deprive the Petitioner

from promotion from the due date since it is not within

her control to undertake such course at her own will.

On the contrary, the University authorities had at the

relevant time refused to forward her name for

undertaking the Orientation course and therefore, they

are estopped from taking the plea as referred above.

Mr. Pattanaik further argues that the Syndicate is

competent to grant promotion under the career

advancement scheme and the Chancellor is only the

appellate authority but by interfering with the

promotion process, a valuable right of appeal of an

aggrieved Lecturer has been taken away. Therefore,

rejection of her claim for antedating her promotion to

the post of Professor to 6th December, 2003 by the

Chancellor is entirely contrary to law.

7. Mr. Anshuram Mishra, learned counsel

appearing for the Berhampur University, contends that

the University is bound by the order of the Chancellor

and therefore, had no option but to seek approval of

the recommendations of the Syndicate from the

Chancellor. In any event, the petitioner having

undergone Refresher course from 13th March, 2008 to

2nd April, 2008, she was promoted to the post of

Professor w.e.f. 2nd April, 2008 being duly approved by

the Chancellor.

8. Mr. J.K.Mishra, learned Senior counsel, submits

that as per the requirement the petitioner is to undergo

4 Refresher courses, 2 before placement in the grade of

Lecturer Senior Scale and two before placement in the

grade of Reader. The Petitioner had completed only 3

Refresher courses and therefore, she could not have

been placed in the post of Professor under career

advancement scheme until fulfillment of this

stipulation.

9. Mr. Sanjeev Udgata, learned counsel appearing

for the Chancellor submits that despite undergoing

only one Orientation course, the Petitioner was placed

in the post of Lecturer Senior Scale which was a

mistake committed by the University. Therefore, at the

time of her promotion to the post of Reader as on 6th

December, 1995, she was falling short of one

Refresher/Orientation course. Despite the deficiency

she was again mistakenly placed in the next higher

grade in the grade of Reader. Mr. Udgata further

submits that relaxation as claimed by the Petitioner as

per U.G.C. circular is prospective in nature and in any

event does not apply to her because she did not

possess the requisite Ph.D. degree as on the date of her

placement in the Senior Scale under C.A.S. Referring

to several case laws, Mr. Udgata further argues that

there can be no estoppel against law and therefore,

having detected the mistake at a later stage, it was well

within the right of the competent authority to reject her

claim of antedating promotion.

10. Before examining the merits of the claim of the

Petitioner as reflected in the prayer made in the Writ

Petition, this Court deems it proper to keep certain

basic facts in perspective. As already stated, the

Petitioner was placed in the Senior Scale w.e.f. 6th

December, 1990 and promoted as a Reader w.e.f. 6 th

December, 1995. Much argument has been made on

behalf of the Opp. Parties as to the lack of qualification

of the Petitioner in the form of not having undergone

the requisite number of Refresher/Orientation courses

at the relevant time for being placed in both Senior

Scale was well as Reader. Her placement in the Senior

Scale was made nearly 26 years ago (considering the

date of filing of the Writ Petition). It is a fait accompli.

Similar is the case if one considers that she was placed

in the Reader Scale 21 years back. There is absolutely

nothing on record to suggest that there was ever any

motion by the authorities to recall the orders of

placement made in respect of the Petitioner as above on

the purported ground of non-possession of the required

qualification even once in all these years.

Learned counsel appearing for the Chancellor has

attempted to persuade this Court that the principle of

estoppel would not apply to correct a mistake of law,

but this Court is not impressed by such argument

because no such step has yet been taken in this regard

and therefore, on a mere theoretical proposition, a long

standing situation cannot be questioned or disturbed

at this distance of time. This Court therefore, holds

that the question of the Petitioner possessing the

required qualification as per the rules/guidelines/

norms prevalent at that time are no longer open to be

questioned.

11. A good many case-laws have been cited by Shri

Udgata to buttress his contentions as indicated above.

On the question that the petitioner's placement in the

Senior Scale and Reader Scale were mistakes and that

it is permissible for the authorities to rectify the same

at any time, Shri Udgata relies upon the decision of the

Supreme Court in State of Maharashtra and

another Vrs Tara Ashwin Patel and others; (2016)

15 SCC 717; Maharshi Dayanand University Vrs

Surjeet Kaur; (2010) 11 SCC 159; Union of India

and another Vrs Narendra Singh; (2008) 2 SCC 750

and Ramesh Gajendra Jadhav Vrs Secretary, Late

SGSP Mandal and Ors; AIR 2010 SC 3502.

In Tara Ashwin Patel (supra), the question

under consideration was whether up-gradation of the

post held by the concerned employees would have any

bearing on grant of senior scale to them. The Court

answered the question in the negative by holding that

the deemed service would not count towards actual

physical service rendered by them. Such is not the

case at hand at all.

In the next three cases, it has been basically laid

down that the employer cannot be prevented from

rectifying its mistake even it may cause hardship and

that a collective error on the part of the University

cannot vest indefeasible legal right in the person. There

is no quarrel with the proposition. But the point is, till

date the authorities have not actually taken any step to

correct the so-called mistake that occurred more than

two decades back. Rectifying the mistake would have

entailed recalling the order of placement of the

petitioner in the Senior Scale and Reader Scale but not

by denying her promotion to the next higher post of

Professor, which would be dependent upon whether

she was qualified for the same or not. So, without

rectifying the mistake, if at all, committed at a time

long past and at the same time insisting upon

compliance of the requirement prescribed for the

previously held posts while considering the promotion

to the next higher post of Professor would not be

permissible in law.

12. The above being the finding of this Court, the

only question that requires to be determined is,

whether the Petitioner had the requisite qualification

for being promoted as Professor and that too, from the

date claimed by her, i.e. 6th December, 2003.

In this regard, reference may be had to the UGC

Notification on revision of Pay Scale, Minimum

Qualifications for Appointment of Teachers in

Universities and Colleges and other Measures for the

Maintenance of Standards, 1998 (U.G.C Notification,

1998). Paragraphs-7.5.0 and 7.6.0 of the said

Notification deals with promotion to the post of

Professor and read as follows;

"7.5.0. In addition to the sanctioned position of Professor, which must be filled in through direct recruitment through all India advertisement, promotions may be made from the post of Reader to that of Professor after 8 years of service as Reader.

7.6.0. The Selection Committee for promotion to the post of Professor should be the same as that for direct recruitment. For the promotion from Reader to Professor, the following method of promotion may be followed.

The candidate should present herself/himself before the Selection Committee with some of the following:

(a) Self-appraisal reports (required)

(b) Research contribution/books/articles published

(c) Any other academic contributions. The best three written contributions of the teacher (as defined by her/him) may be sent in advance to the Experts to review before coming for the selection. The candidate should be asked to submit these in 3 seats with the application.

(d) Seminars/conferences attended.

(e) Contribution to teaching/academic environment/ Institutional corporate life.

(f) Emission and field outreach activities."

Clause-iii of Paragraph 7.7.0 reads as follows;

"(iii) The senior teachers like Readers/Lecturers (Selection Grade) and Professors may opt to attend two Seminars/Conferences in their subject area and present papers as one aspect of their promotion selection to higher level or attend refresher courses to be offered by ASC for this level."

(Emphasis Added)

Shri Udgata has cited the decision of the

Supreme Court in the case of University Grants

Commission and Another Vrs Nehal Anil Bobde

(Gadekar); (2013) 10 SCC 519 to contend that the

Court shall not generally sit in appeal over the opinion

expressed by expert academic bodies and that to

maintain the standards of teaching UGC is competent

to lay down qualifying criteria. He has also cited the

decision in the case of Subhash Chandra Dhrupta

and Another Vrs State of HP and Others; (2000) 10

SCC 82 to support his argument that a promotee has

to fulfill the educational qualification prescribed in the

rule. He also cited the decision of the Supreme Court

in the case of State of Gujarat and Ors Vrs

Arvindkumar T Tiwari and Anr; AIR 2012 SC 3281

to contend that eligibility criteria as laid down by the

executive authority/legislature cannot be relaxed on

the order of the Court.

This Court finds no difficulty in agreeing with

the propositions laid down in all the above referred

case-laws. In fact, this Court would also place reliance

entirely on the criteria if any laid down by the UGC.

Further, there can be no second opinion that a person

can be promoted only if he/she meets the requisite

criteria and not otherwise.

13. The Government of Odisha in the department of

Higher Education came out with a Resolution dated

31st December, 1999 on the subject of revision of pay

scale, minimum qualifications for the appointment of

Teachers in the Universities and Colleges and other

Measures for Maintenance of Standards. Paragraph-2

of the said Resolution read as follows;

"2. The Government of India after considering the various recommendations of the UGC on revision of Pay Scales of University and College Teacher, communicated their decision to State Government in their letter No. F.1-22/97-Ul, dated the 27th July 1998 and requested to implement the scheme in the State after taking local conditions into consideration, and with all the conditions to be laid down in this regard by the U.G.C. by way of Regulations. Accordingly the U.G.C, had communicated their Notification on "Revision of Pay Scales, Minimum qualifications for appointment of teachers in Universities and Colleges and other measures for the maintenance of standards, 1998" in their letter No F3-1/94(PS), dated the 24th December 1998 and requested to implement the same for Universities and affiliated Colleges."

Thus, the U.G.C. Notification, 1998 was accepted

by the Government of Odisha. Pargaraph-4.9.0. deals

with career advancement and 4.10 deals with Professor

(promotion). The same read as follows;

"4.9.0. Career Advancement:

(a) Minimum length of serve for eligibility is to move into the grade of Lecturer(Senior Scale) would be four years for these with Ph.D, five years for with M.Phil, and six years for others at the level of Lecturer, and for eligibility to move into the Grade of Lecturer (Selection Grade)/Reader, the minimum length of service as Lecturer Senior Scale) shall be uniformly five years.

(b) For movement into grades of Reader and above, the eligibility criterion would be Ph.D. These without Ph. D can go upto the level of Lecturer (Senior Grade).

(c)A leader with a minimum of eight years of service in that grade will be eligible to be considered for appointment as a Professor.

(d) The Selection Committees for Career Advancement at different grade shall be the same as those for Direct Recruitment for each category.

4.10. Professor (Promotion):

(a) The scheme of promotion from Reader to Professor shall be implemented in Universities and Government Colleges in accordance with the U.G.C. guidelines.

(b) In addition to the sanctioned position of Professors, which must be filled in through direct recruitment through all India advertisements, promotions may be made from the post of Reader to that of Professor after 8 years of service as Reader.

(c) The Selection Committee for promotion to the post of Professor should be the same as that for direct recruitment. For the promotion from Reader to Professor, the following method of promotion may be followed.

(d) The candidate should present herself/himself before the Selection Committee with some of the following:

(a) Self-appraisal reports (required)

(b) Research contribution/books/articles published

(c) Any other academic contributions. The best three written contributions of the teacher (as defined by her/him) may be sent in advance to the Experts to review before coming for the selection. The candidate should be asked to submit these in 3 seats with the application.

(d) Seminars/conferences attended.

(e) Contribution to teaching/academic environment/ Institutional corporate life.

(f) Emission and field outreach activities."

Paragraph-4.11 deals with participation in

Orientation and Refresher course. Clause(a), (b)(i)(ii) do

not relate to Professors. Sub-clause (iii) of Clause (b) of

Paragraph 4.11 reads follows;

"(iii) The senior teachers like Readers/Lecturers (Selection Grade) and Professors may opt to attend two Seminars/Conferences in their subject area and present papers as one aspect of their promotion selection to higher level or attend refresher courses to be offered by ASC for this level."

(Emphasis Added)

Thus on a conjoint reading of the U.G.C

Notification, 1998 and the Government Resolution

dated 31st December, 1999, it is abundantly clear that

firstly, the norms prescribed for promotion to Professor

from Reader is by and large the same and secondly,

there is no mandatory requirement for a Reader to

undergo 2 Refresher/Orientation courses for being

promoted to the post of Professor. In fact, the very

language employed in Clause (iii) of Paragraph 7.7.0 of

U.G.C Notification, 1998 and Sub-clause (iii) of Clause

(b) of Paragraph 4.11 of Government Resolution

dtd.31st December, 1999 i.e. 'may opt' and 'or' clearly

shows that attending seminars/conferences/

orientation/ refresher courses is not a mandatory

requirement for being promoted to the post of

Professor. In fact, the Petitioner's claim for promotion

was rejected only on the ground that she was required

to undergo 4 Refresher courses, 2 before placement as

Lecturer Senior Scale and 2 before placement as

Reader, but she had completed only 3 such

courses.

14. Thus, in effect, what the authorities have

put forth as a ground to reject her claim for Professor

is by falling back upon the requirement she was

supposed to possess at the time of her placement in

the Senior Scale 26 years ago and as a Reader 21 years

ago. Is such a course of action conscionable in law?

The answer would obviously be in the negative. Having

granted the benefit of placement in the Senior Scale

and as Reader for so long, the University cannot rake

up the question of qualification at this stage.

Moreover, neither the U.G.C. Notification, 1998 nor the

Government Resolution dated 31st December, 1999

prescribe any such criteria as a mandatory

requirement. The Petitioner's claim for being

considered for promotion to the post of Professor after

completing 8 years in the rank of Reader could not

therefore have been denied by the authorities, much

less on the ground cited by them. The decisions cited

as referred above are of no help to Mr Udgata.

15. Reference to the language used in the

aforementioned Notification and Resolution i.e., 'may

opt' clearly suggests that the U.G.C. did not deem it

proper to insist upon the requirement of undergoing

Refresher/Orientation course mandatorily for Senior

Teachers like Readers obviously because by such time

such Teachers would have acquired sufficient level of

skill and proficiency in their respective subjects so

that undergoing such courses by them would be

redundant. In view of what has been discussed herein

before, the other case-laws cited by Mr Udgata are not

required to be discussed as the same are on points not

germane to the facts in issue.

16. Thus, from a conspectus of the analysis of the

relevant provisions of the U.G.C Notification, 1998 and

the Government Resolution dated 31st December, 1999,

this Court is of the considered view that the Petitioner

was eligible for being considered for promotion to the

post of Professor w.e.f. 6th December, 2003 having

completed 8 years of service as Reader. Further, the

ground on which her claim was refused by the

authorities is untenable in the eye of law. This Court

therefore, finds that the Petitioner has made out a good

case for interference by this Court.

17. In the result, the Writ Petition is allowed. The

impugned order under Annexure-23 is hereby quashed.

The Opposite Party-authorities are directed to pass

necessary orders to antedate the promotion of the

Petitioner to the post of Professor w.e.f. 6th December,

2003 with all consequential service and financial

benefits. Such order should be passed within a period

of 2 months from the date of production of certified

copy of this order by the Petitioner.

.................................. Sashikanta Mishra, Judge

Ashok Kumar Behera

Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Oct-2023 10:50:03