Tripura High Court

The State Of Tripura vs Dr. Pallab Kanti Ghoshal on 21 December, 2021

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                        HIGH COURT OF TRIPURA
                              AGARTALA
                             W.A No. 226 of 2021
1.    The State of Tripura,
To be represented by Secretary, Department of Education
(Higher), Government of Tripura, New Secretariat Complex,
Kunjaban, Agartala, West Tripura, PIN-799010.
2.     The Director,
Department of Higher Education, Government of Tripura,
Office Lane, Agartala, West Tripura.
3.     The Principal,
B. B. M College, Agartala, West Tripura.
                                                    ............... Appellant(s).
                                      Vs.
Dr. Pallab Kanti Ghoshal,
Son of late Sunil Kanti Ghoshal, R/o-Pratap Roy Road,
Krishnanagar, P.S-West Agartala, Agartala, Tripura West.
                                                       ............... Respondent(s).

For Appellant(s)    :     Mr. Dipankar Sarma, Addl. Govt. Adv.
For Respondent(s) :       Mr. P. Roy Barman, Sr. Advocate.
                          Mr. Kawsik Nath, Advocate.

       HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY
          HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY

                                   ORDER

21/12/2021 This writ appeal is directed against the order dated 02.02.2021

passed by the learned Single Judge in W.P(C) No.482 of 2020.

[2] The factual background of the case is as under:

The respondent is an Associate Professor under the Department

of Higher Education, Government of Tripura. Before filing Writ Petition (C)

No.482 of 2020, respondent filed W.P(C) No.701 of 2019 for directing the

appellants (respondents in the writ petition) to provide him promotion to the

post of Professor in pay band Rs.37,400 - 67,000/- with AGP of Rs.10,000/-

under Career Advancement Scheme(CAS). Learned Single Judge viewed that

even though the appellant was eligible for such promotion, relief cannot be

granted to him until 10% of the sanctioned posts of Associate Professor is

earmarked in the cadre of Professor by creation of posts. Viewing thus, the

learned Single Judge by his order dated 21.06.2019 in W.P(C) No.701 of

2019 directed the State-respondents (appellants herein) to take a decision for

creation of the posts of Professor under CAS expeditiously. The relevant

extract of the said order is as under:

"5. By means of this petition, the petitioner has urged this court to direct the respondents to give him promotion under CAS to the post of Professor in compliance of the Annexure-1 to the letter dated 19.10.2012 issued by the Directorate of Higher Education, Government of Tripura to the Principals, Government Degree Colleges. Further, it has been urged to this court to consider the placement of the petitioner from the post of Associate Professor to the post of Professor in terms of CAS with effect from the date, when the petitioner completed three years as Associate Professor.

6. This court is constrained to observe that since, it is on record that 10% of the sanctioned Associate Professors have not been created in the cadre as yet, this court cannot grant such relief, as urged.

Having observed the dilly dallying of the respondents to implement their own policy, the respondents are directed to expeditiously take the decision on creation of the post of Professors [under CAS] a proposal for which was initiated on 08.05.2013 as is reflected in the communication dated 12.03.2019 [the information which has been disclosed under the Right to Information Act, 2005] within a period of three months from the day when the petitioner shall submit a copy of the order to the respondents. Needless to observe that if the petitioner is aggrieved by any decision of the respondents, he shall be at liberty to approach this court."

[3] Due to inaction on the part of the appellants (respondents in the

writ petition) in providing the relief to him, appellant filed W.P(C) No.482 of

2020. By the impugned order dated 02.02.2021, learned Single Judge held

that the State-respondents (appellants herein) did not disclose any reason as

to why posts of Professors were not created by them for extending the

benefit of CAS to the eligible Associate Professors. Since the respondent

had retired from service on superannuation by then, the learned Single Judge

directed the State-respondents (appellants herein) to re-determine the last pay

of the respondent on the basis of the pay scale of Professor having AGP of

Rs.10,000/- or as revised subsequently for the purpose of determination of

his pension and other financial benefits subject to his eligibility. Learned

Single Judge viewed that the respondent, if found eligible, be given notional

benefit of the pay scale and AGP of Professor with effect from 09.04.013.

The relevant extract of the impugned order passed by learned Single Judge is

as under:

"11. Having appreciated the submission made by the learned counsel for the parties, the averments and the records available with the writ petition, this court is of the view that for inaction of the respondents in operationalising the placement scheme by creation of the posts of Professor, the eligible Associate Professors have been deprived and for such deprivation the respondents are wholly responsible. The state has not disclosed any reason for not creating the posts of Professor in order to extend benefits to the eligible Associate Professors. This court cannot be oblivious that the said benefit was a stagnation relief. In these perspective facts, as emerged, the respondents are directed to re-consider the case of the petitioner whether he was suitable to get the benefit of the scheme as circulated by the communication dated 19.10.2012 [Annexure-1 to the writ petition] and if it is found that the petitioner was fit for that benefit, the

petitioner be given the notional benefit with effect from 09.04.2013 when the screening committee after appreciating the self-appraisal submitted by the petitioner, recommended for creation of the post of Professor till the date when the new scheme had come to effect, couched with creation of the posts of Professors, by creating the supernumerary post and converging them into the newly created post as stated in the reply filed by the respondents. But the last pay of the petitioner as he has retired from the service will be re- determined on the basis of the scale of the Professor having AGP of Rs.10,000/- or as revised subsequently, if applicable. The petitioner will not get any financial benefit till the time of convergence to the posts of Professors, as created. It is clarified that in the process, the last pay will be re-determined. In all circumstances, pension and other retirement benefits be actual not notional. Such benefit shall be released within a period of three months from the day when a copy of this order be furnished to the Director of Higher Education, Government of Tripura by the petitioner.

Having observed and directed thus, this writ petition stands allowed to the extent as indicated above."

[4] By means of filing this appeal, the State -respondents

(appellants herein) have challenged the impugned order mainly on the

following grounds:

(i) Learned Single Judge did not appreciate the fact that the benefit of stagnation relief under CAS by promoting him to the post of Professor could not be provided to the respondent due to non availability of sanctioned posts of Professor until his retirement.

(ii) The learned Single Judge did not appreciate the fact that the said posts of Professor were created only after the retirement of the respondent from service on superannuation and, as such, the direction of the Hon'ble Single Judge for determination of pension and retiral benefits of the petitioner by fixing his pay

and allowances notionally on the basis of the pay scale of the Professor is not sustainable.

[5] Heard Mr. Dipankar Sarma, learned Additional Govt. Advocate

appearing for the appellants. Also heard Mr. P. Roy Barman, learned Sr.

Advocate appearing along with Mr. Kawsik Nath, learned advocate for the

respondent.

[6] Counsel appearing for the appellants contends that the

respondent retired from service on superannuation before the impugned order

was passed by the learned Single Judge. Therefore, the impugned order

directing the appellants to provide notional fixation of pay to the respondent

and re-determine his pension and other retiral benefits on the basis of the pay

scale and AGP of Professor is wholly erroneous and unsustainable in law.

The counsel, therefore, urges for setting aside the impugned order.

[7] Mr. P. Roy Barman, learned Sr. Advocate appearing for the

respondent on the other hand argued that despite meting all requirements for

promotion to the post of Professor, respondent was deprived of his

legitimate dues due to inaction on the part of the appellants and, as such, the

learned Single Judge directed the appellants to provide the benefit of the pay

and AGP of Professor to the respondent by notionally fixing his pay and

allowances till his retirement and providing him the actual pension and retiral

benefits on the basis of the pay scale of the Professor. Counsel submits that

the impugned judgment passed by the learned Single Judge does not call for

any interference in appeal.

[8] Considered the submissions made by learned counsel

representing the parties. Perused the record. Undisputedly, the Career

Advancement Scheme (CAS) has been adopted by the appellants for

movement of Associate Professor with designation of Professor (Stage-5) in

pay band of Rs.37,400 - 67,000/- with AGP of Rs.10,000. Relevant part of

the said scheme is as under:

4. THE PLACEMENT FROM ASSOCIATE PROFESSOR TO PROFESSOR (I.E. FROM AGP RS.9,000/- TO AGP RS.10,000/-) IS SUBJECT TO CREATION OF 10% POSTS OF PROFESSOR UNDER EDUCATION (HIGHER) DEPARTMENT IN REFERENCE TO THE TOTAL NUMBER OF ASSOCIATE PROFESSOR IN POSITION.

Associate Professor Associate Professors (i) A Ph. D Degree in relevant (Stage 4) to Professor completing three years of discipline is mandatory. (Stage 5) (AGP 9000/- service in the AGP (ii) A minimum of four to 10,000/-) Rs.9,000/- may be moved publications in reputed GP Rs.10,000/- with journals/books/edited books designation of Professor (published by International (i.e. as per terms and /National/State level conditions of the State publishers with ISBN/ISSN Government Notification numbers) or in Government for revision of pay of the Publications since the period teachers of General/ that the teacher is placed in Professional and Degree Stage level College meant for 3.

                                      CAS)                         (iii)     At      least      one
                                                                   Text/Reference/concerned
                                                                   discipline     related/research
                                                                   oriented Book published by
                                                                   international/National/state
                                                                   level     with      ISBN/ISSN
                                                                   number.
                                                                   (iv)       Screening        cum
                                                                   Verification     process      for
                                                                   recommending promotion.




[9]             It has surfaced from the record that the following requirements

are to be fulfilled by an Associate Professor for designation as Professor.

"(i) A Ph. D Degree in relevant discipline [is mandatory].

(ii) A minimum of four publications in reputed journals/books/edited books (published by international/National/State level publishers with ISBN/ISSN numbers) or in Government Publications since the period that the teacher is placed in Stage 3.

(iii) At least one Text/Reference/concerned discipline related/research oriented Book published by international/National/state level with ISBN/ISSN number.

(iv) Screening cum Verification process for recommending promotion."

[10] Along with their reply in the writ petition, the appellants also

filed the minutes of the meeting of the screening committee constituted vide

notification No.F.1(13-1)-DHE/SET(G)/12 dated 22.09.2012 under

Education (Higher) Department, Government of Tripura which revealed that

in the meeting of the screening committee held on 09.04.2013, the committee

recommended that Associate Professor completing 3(three) years of service

with AGP of Rs.9000/- and possessing Ph. D in the relevant discipline be

considered for appointment as Professor in the pay band of Rs.37,400-

67,000/- with AGP of Rs.10,000/-. But nothing happened since then.

Pursuant to the judgment of the learned Single Judge passed in W.P(C)

No.701 of 2019, the respondent also submitted representation dated

26.06.2019 to the appellants along with the self assessment of his

performance seeking designation as Professor under CAS. The respondent

annexed a statement to his said representation showing that he met all

requirements for promotion to the post of Professor under CAS. In his

subsequent representation dated 6.5.2020 the respondent reminded the

appellants that he would be retiring soon and, as such, granting of such

benefits to him under CAS would in no circumstances stall the career

advancement of his juniors. Even thereafter, the appellants did not consider

his case for providing the stagnation relief under CAS till he retired from

service on superannuation.

[11] The stand taken by the appellants before the learned Single

Judge in W.P(C) No. 482 of 2020 justifying denial of the CAS benefit to the

petitioner (respondent herein) is reproduced hereunder:

"It is pertinent to mention here that in the year 2013 the Petitioner could not be considered for movement in higher AGP from Rs.9,000/- to Rs. 10,000/- (Associate Professor to Professor) as there was o existence of post of Professor under the department for consideration. Therefore, the claim of the Petitioner could not be entertained.

Subsequently after the order of Hon'ble High Court dated 21.06.2019 the department initiated a proposal for creation of post of Professor (under CAS) within the period of 3(three) months from the date of order but the matter was not finalized. The matter was noted by the Hon'ble High Court in a separate case no.WP(C)701 of 2019 allowed further period of 2(two) months to the department by an interim order dated 22.11.2019. Thereafter, the matter was further examined in the department and process the file to the GA(P & T), Finance Department, Law Department and after approval of the Council of Ministers for extending benefits under Career Advancement Scheme (CAS) for re-designation of Associate Professor as Professor of Government (General) Degree Colleges has been notified vide no.1(713)-DHE/SET(G)/2019/242(43) dated 27.04.2020 in compliance of the Hon'ble High Court Order dated 21.06.2019 as per UGC 7th CPC. Subsequently after creation of post of Professor the Petitioner has been duly informed that detail information as per format has been sought for from the Principal/Principal in-charge for further processing the matter as per UGC Regulations, 2018, (New Regulations has been taken place during the process of creation of post of Professor) by issuing a letter dated

14.05.2020 with reference to his Representation dated 20.03.2020 and the Petitioner do not turn-on with his application for the post of Professor (under CAS) within due date.

On 05.06.2020 Petitioner submitted another Representation. In Para 4 of the Representation petitioner states that his promotion was due w.e.f. 01.01.2009, thus it has in no way, any connection with the UGC Regulation 2018 under which information was sought from the Principals of different Colleges and also in Para 5 of the said Representation he also states that:

"I would not consider it as any laps on the part of the department but my ill fate."

In the context of the above it is to be mentioned here that the claim of the Petitioner that he is no favoured with the post of Professor cannot be conceded to as per the guideline of 7th CPC as well as keeping in view of the High Court direction because the department has created post of Professor and accordingly a guideline has been prepared and circulated to the head of institutions for submitting proposals amongst the eligible faculties of the Colleges vide Memo no.1(713)- DHE/SET(G)/2019/2421(43) dated 27.04.2020 for filling up of the post of Professor from the eligible candidates which is now under process. So, the allegation of deprivation brought by the Petitioner is not true.

From the averment made by the department in connection with the claim of the Petitioner above it is crystal clear that in accordance with the regulation of the UGC the department has given to petitioner ample scope to avail the avenue of the promotion to the post of professor but if any of the faculty concern has failed to meet up the eligibility criteria of the UGC the department has nothing to interfere on it. Therefore the statement of deprivation made by the petitioner is devoid of merit for consideration which may be rejected by the Hon'ble High Court."

[12] The learned Single Judge did not find any merit in the stand

taken by the appellants (respondents in the writ petition) and held that the

respondents failed to operationalise their own scheme by creating the post of

Professor and thereby the eligible Associate Professors were deprived of

their legitimate dues for which the appellants were wholly responsible. The

learned Single Judge therefore, directed the appellants (respondents in the

writ petition) to reconsider the case of the petitioner whether he was suitable

to get the benefit of CAS and if it was found that he was suitable for such

benefit, the respondent would be given notional benefit with effect from

09.04.2013 and he would be entitled to pension and other retiral benefits in

terms of the pay scale of the Professor.

[13] For the reasons stated above, we find no reason to interfere with