WPSB/622/2021
2022 Latest Caselaw 1330 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

                      SRI JUSTICE S.K. MISHRA, A.C.J.
                                  AND
                       SRI JUSTICE R.C. KHULBE, J.

27th APRIL, 2022

WRIT PETITION (S/B) No. 622 OF 2021

Between:

Dr. Deepak Kumar Tiwari.

...Petitioner and

State of Uttarakhand and others ...Respondents

Counsel for the petitioner. : Mr. S.S. Yadav, the learned counsel.

Counsel for the respondent nos. 1, : Mr. Pradeep Joshi, the learned 2 and 4. Additional Chief Standing Counsel for the State of Uttarakhand.

Counsel for the respondent no. 3. : Mr. Vikas Pande, the learned counsel.

Upon hearing the learned Counsel, the Court made the following

JUDGMENT : (per Sri S.K. Mishra, A.C.J.)

By filing this Writ Petition, the petitioner, a

holder of Ph.D., has prayed for issuance of a writ in the

nature of mandamus directing the respondent nos. 1 and

2 to permit him to move his application as per the

eligibility criteria of UGC Regulation 2010, or as per the

UGC Regulation, 2018, and give the option to the

petitioner to move his application as per his choice i.e.

either under the 2010 or 2018 UGC Regulations. He has further prayed for issuance of a mandamus directing the

respondent nos. 1 and 2 to provide same treatment and

mode of option like it has been given to the Assistant

Professor working in the Government Degree College on

the post of Associate Professor, and to the Associate

Professor of the Government Aided Private Colleges as

per window period of three years between 18.07.2018 to

17.07.2021.

2. The facts of the case are not in dispute. The

petitioner was initially appointed in the year 2005 as a

Lecturer/Assistant Professor in the Higher Education

Department for teaching the subject of Mathematics. He

joined in the Government Degree College, Baluwakot,

District Pithoragarh on 21.07.2005. In between

30.11.2009 and 11.12.2012, the petitioner continued in

that College and was transferred from Government

Degree College, Baluwakot, District Pithoragarh to

Government Post Graduate College, Bageshwar, District

Bageshwar, and finally to Laxman Singh Mahar

Government Post Graduate College, Pithoragarh, District

Pithoragarh, where he is continuing at present as

Associate Professor.

3. The University Grants Commission, as per the

G.O. No. 1479(1)/xxiv(7)/2013-45(4)/11 dated

28.05.2013, brought out the Career Advancement

Scheme, 2010. Clause 8 of the said Scheme provides as

follows :-

"8. Associate Professor completing three years of service in stage 4 and possessing a Ph.D. Degree in the relevant discipline shall be eligible to be designated as Professor and be placed in the next higher grade (stage 5 i.e. Grade Pay Rs. 10000), subject to (a) satisfying the required credit points as per API based PBAS methodology provided in UGC Regulations, and (b) an assessment by a duly constituted committee, Provided that no teacher, other than those with a Ph.D., shall be promoted as Professor."

4. Thereafter, no advertisement was brought out

by the State of Uttarakhand for giving promotion on the

post of Professor in Government Colleges/Government

Aided Colleges. In the year 2008, as per the Gazette

Notification dated 18.07.2018, the UGC issued

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, 2018. The relevant provision is

Clause 6.3, which reads as follows :-

"6.3 The criteria for promotions under Career Advancement Scheme laid down under these Regulations shall be effective from the date of notification of these Regulations. However, to avoid hardship to those faculty members who have already qualified or are likely to qualify shortly under the existing regulations, a choice may be given to them, for being considered for promotions under the existing Regulations. This option can be exercised only within

three years from the date of notification of these Regulations."

(underlined to emphasize)

5. On 06.09.2019, the aforesaid Regulations of

the UGC were adopted by the State of Uttarakhand, and

the Evaluation Committee was approved by the State of

Uttarakhand on 25.10.2021. Thereafter, on 11.12.2021,

the respondent no. 2 invited applications for Career

Advancement Scheme for the post of Senior Scale.

6. In that view of the matter, Mr. S.S. Yadav, the

learned counsel for the petitioner, would argue that in

view of Clause 6.3 of the 2018 UGC Regulations, the

petitioner is entitled to exercise his option either to be

considered under the 2010 or the 2018 Regulations of the

UGC. The learned counsel would further submit that in

the interregnum, there was no advertisement for the post

of Career Advancement Scheme of teachers. Hence, the

petitioner was denied of any chance to make an

application for the Career Advancement Scheme, for

which he is entitled, and is also eligible.

7. On the other hand, Mr. Pradeep Joshi, the

learned Additional Chief Standing Counsel for the State of

Uttarakhand, would submit that they have sought a

clarification from the University Grants Commission, and

as per Annexure No. CA-4 (Colly) to the counter-affidavit,

which is quoted at paragraph no. 6 of the counter-

affidavit, the said window or period of relaxation is

available to any candidate only for three years, and in the

meantime three years' period has elapsed. Hence, the

petitioner is not entitled to be given option either to be

considered under the 2010 or the 2018 UGC Regulations.

8. Mr. Vikas Pande, the learned counsel is present

on behalf of the University Grants Commission, but no

counter-affidavit has been filed on behalf of the

University Grants Commission.

9. The submissions made by the learned

Additional Chief Standing Counsel for the State of

Uttarakhand are unacceptable in view of the fact that the

UGC Regulations of the year 2018 were placed before the

Evaluation Committee and it recommended the same in

the year 2019, which was adopted by the State of

Uttarakhand in the year 2019. In the interregnum, there

was no advertisement for Career Advancement Scheme

for any of the Assistant Professor or Associate Professor.

So, in effect, the petitioner was denied any opportunity of

availing this three years' window period for no fault of

his. It is not the case of the State of Uttarakhand that, in

the meantime, there was no vacancy in the post of

Professors.

10. That being the position, we are of the opinion

that the interest of justice would be sub-served if the

petitioner is considered for Career Advancement Scheme

as per his option either under the 2010 or the 2018 UGC

Regulations.

11. In that view of the mater, we find enough merit

in this Writ Petition. The Writ Petition is, hereby, allowed.

The respondent no. 2, namely Director, Higher Education,

is directed to permit the petitioner to move his application

as per the eligibility criteria of the 2010 or the 2018 UGC

Regulations, as per his option.

12. It is brought to our notice that the interview is

scheduled to be held on 28.04.2022 i.e. tomorrow. As

this Writ Petition is allowed today, the respondent no. 2,

namely the Director, Higher Education, shall make

arrangements of a special sitting to interview the

petitioner, if he is found eligible, on a suitable date in

future.

13. There shall be no orders as to cost.

14. In sequel thereto, all pending applications also

stand disposed of.

15. Urgent certified copy of this order be issued to

the parties, as per Rules.

________________ S.K. MISHRA, A.C.J.

____________ R.C. KHULBE, J.

Dt: 27th April, 2022 Rahul