Virendra Tiwari vs Jawaharlal Nehru Krishi Vishwa ... on 25 February, 2020

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Madhya Pradesh High Court

Virendra Tiwari vs Jawaharlal Nehru Krishi Vishwa ... on 25 February, 2020

Equivalent citations: AIRONLINE 2020 MP 592

Reserved on: 17/10/2019 Delivered on: 25/02/2020 (O R D E R) This petition is under Article 226 of the Constitution of India. The petitioner is basically claiming in the petition that the respondents may be directed to correct the date of professorship (CAS) of the petitioner w.e.f. 28.04.2012 with all consequential benefits of pay, perks and status. Although the petitioner has been granted professorship w.e.f. 27.11.2014, but, as per the petitioner, the same ought to have been granted to him w.e.f. 28.04.2012.

2. To resolve the controversy involved in the petition, the facts in brief are required to be referred. The petitioner had participated in the National Open 2 Selection Process and was selected and joined as Assistant Professor in the respondent-University on 08.10.1984. Thereafter the petitioner was inducted into the cadre of Associate Professor w.e.f. 01.01.2006. He completed his Doctorate and was granted the Doctorate Degree on 28.04.2012. Thereafter, under Career Advancement Scheme (for short 'CAS') selection for the post of Professor was announced after the 203rd meeting of the Board held on 28.01.2014 and the same was notified vide notification dated 27.03.2015 with cut-off date 31st March, 2015 in which the last date of submission of application was 15.06.2015. The petitioner applied in terms of the stipulated procedure in prescribed proforma, however, the University further issued a notification dated 17.06.2016 (Annexure P/7) extending the date of submitting application up to 28 th June, 2016 with the condition that those who had already applied need not apply again, however, they may submit additional informations, if any. Despite extending the date of submission of application, the cut of date i.e. 31st March, 2015 was kept unchanged by the respondent-University. The petitioner successfully qualified the selection process and was appointed as CAS Professor w.e.f. 27.11.2014, but, as per the petitioner, this is not the correct date of his CAS Professorship because he should have been granted the same w.e.f. 28.04.2012. During the currency of selection process, a corrigendum was issued on 20.01.2016 (Annexure P/2) modifying the eligibility criteria mentioned in the notification dated 13.03.2015. The petitioner, when enquired as to why he was not granted 3 the CAS Professorship w.e.f. 28.04.2012, he came to know that he did not have the required qualification on 28.04.2012, as per the changed eligibility criteria mentioned in the corrigendum (Annexure P/2) and as he acquired the said qualification only on 27.11.2014, therefore, the CAS Professorship was made effective from the said date.

3. As per the petitioner, this action of the respondents is absolutely illegal and contrary to settled principles of law that once the process of selection starts, there cannot be any change in the eligibility criteria in the mid of the selection process and the authority cannot change the rule of game once the game starts. Therefore, such corrigendum has no applicability and the same is sought to be declared illegal and its quashment. As per the averments made in the petition, the corrigendum dated 20.01.2016 brings about vital changes in the criteria, contrary to the established UGC norms as have been approved in the 203rd meeting of the Board. It is also averred by the petitioner that the said corrigendum has been issued by the Registrar, who apparently does not possess any authority or power to issue such a corrigendum. The grievance of the petitioner is that the changed criteria is depriving him to get the benefit of CAS selection and promotion to the post of Professor w.e.f. 28.04.2012 and, therefore, as per the petitioner since the changed criteria has no application and is contrary to law, the case of promotion of the petitioner to the post of Professor ought to have been considered on the basis of criteria made in the notification dated 13.03.2015 (Annexure P/6). The petitioner has also 4 made several representations to the authority, but, nothing has been done. Hence, this petition.

4. The respondents have filed their reply taking stand therein that the corrigendum dated 20.01.2016 was very well in the knowledge of the petitioner, but, at that time he did not challenge the same. It is stated in the reply that the original advertisement was issued on 27.03.2015 and thereafter due to administrative reason the last date of receipt of the applications was extended by various notifications dated 28.04.2015, 23.05.2015 and 27.06.2015. It is also stated in the reply that the impugned corrigendum dated 20.01.2016 was duly notified on the official website of the answering respondents and the copy of the same was sent to all the departments/Constituent Colleges and Research Centre, KVK etc. It is stated by the respondents that the petitioner submitted an application on 28.06.2016 whereby he submitted additional documents, requesting that the same be treated to be the part of his earlier application submitted on 15.06.2015. By the said application, the petitioner submitted his 5 th paper of research/publication to meet out the amended eligibility criteria notified vide corrigendum dated 20.01.2016. It clearly indicates that the petitioner duly accepted and participated in the above selection process without any hitch or objection and has raised the objection only when he was granted promotion vide order dated 17.02.2017 w.e.f. 27.11.2014. As per the respondents, once the candidate has participated in the selection process without any complaint then raising any objection and difficulty subsequently in the selection 5 process is not proper and only on this ground the selection process cannot be declared illegal. As per the respondents, after issuance of advertisement dated 27.03.2015, when the applications were received, it was found that some of the candidates in order to substantiate their claim in respect of criteria of "minimum requirement of five publications", were submitting the articles published by them in the newspapers also. Since these articles were not as per the prescribed standard of the University and to upgrade standard of the publication, the amended criteria of "A minimum of five publications in NAAS rated/ISBN/ISSN numbered journals since the period that the teacher is placed in Stage 3" was proposed. The said proposal was placed before the competent body i.e. Academic Council as per the Statute No.4 of the Vishwavidyalaya Statute, 1964, which duly considered and approved the same in its 246th meeting dated 16.12.2015 and thereafter it was placed before the Board of Management meeting dated 07.01.2016, which was duly approved by the Board also. Thus, the competent authority granted due approval to the said amendment in the eligibility criteria in the administrative and academic interest. It is also stated in the reply that the petitioner obtained the degree of Ph.D. on 28.04.2012 and has completed three years of service in the pay scale of Rs.37,400+AGP 9000/- on 01.01.2009, however, out of the five publications submitted by him, the last one was published on 27.11.2014 and as per the eligibility qualification of "five publications", which was one of the mandatory 6 requirement to be considered for promotion, the same was fulfilled by the petitioner on 27.11.2014. Therefore, the Selection Committee, after due consideration, granted him promotion w.e.f. 27.11.2014. The condition of "five publications" was a part of the corrigendum and 5th publication was submitted by the petitioner on 28.06.2016 which makes it clear that on 28.04.2012 i.e. the date of acquiring the Ph.D. Degree, the petitioner did not possess the said qualification and, therefore, his claim for grant of promotion w.e.f. 28.04.2012 is not proper. It is stated by the respondents in the reply that petitioner was fully aware about the said situation and only after knowing about the amended qualification he submitted his 5th publication alongwith the application dated 28.06.2016. Therefore, he was granted promotion from the date when he acquired the eligibility qualification i.e. on 27.11.2014 and merely because he obtained Ph.D. degree on 28.04.2012, no right is accrued in his favour for considering his promotion from the said date.

5. From the stand taken by both the parties and considering the arguments advanced by them, the core question arises for consideration is as to whether respondents can change the eligibility criteria for promotion to the post of Professor after issuance of notification introducing Career Advancement Scheme (CAS) and invite the applications under the said selection process and consequently on submitting the application by the petitioner in pursuance to the notification dated 13.03.2015 the petitioner had the requisite qualification to be promoted to the post of 7 Professor. The petitioner has mainly contended that the corrigendum dated 20.01.2016 (Annexure P/2) was issued after the selection process had already started and even after extending the last date for submitting application in pursuance to a notification dated 13.03.2015 (Annexure P/6), the cut-off date for fulfilling the eligibility criteria i.e. 31 st March, 2015 remained unchanged. Undisputedly, the corrigendum issued after the date of inviting application i.e. the date of starting the selection process and the said corrigendum clearly reveals modification in the eligibility criteria for promotion under CAS. The following amended qualification which hit the petitioner and the same was not in the original notification in the column of 'Requisite Qualification' is as under:

JAWAHARLAL NEHRU KRISHI VISHWAVIDYALAYA, JABALPUR CORRIGENDUM No. Estt.1.Agri. 14th CAS/56 Dated 20.01.2016 Existing Scale of S.No. Modification scale of promotion payment and stage stage Rs.37400- Rs.37400- 3(ii) is A minimum of five 67000+AGP 67000+AGP modified publications in Rs.9000; Rs. 10000; as referred/NAAS rated Stage 4 Stage 4 journals since the period that the teacher is placed in Stage 3 whereas the basic notification contains the following eligibility qualification, which is as under:

4 Associate Associate (i) Minimum yearly Professor Professor /cumulative API scores (Stage 4) with three using the PBAS scoring 8 Professor/ years of proforma developed by equivalent completed the concerned cadres (Stage service in university as per the

5) Stage 4. norms provided in Table II(A)/II(B) of Appendix III. Teachers may combine two assessment period (in Stages 2 and 3) to achieve minimum API scores, if required.

(ii) A minimum of five publications since the period that the teacher is placed in Stage 3.

                                        (iii)    A     selection
                                        committee process as
                                        stipulated    in     this
                                        regulation    and      in
                                        Tables II(A) and II(B) of
                                        Appendix III.

6. In view of the above, it is clear that there is modification in the eligibility qualification and as per the petitioner he had minimum five publications since the period when the teachers were placed at stage-3 and the same was submitted by the petitioner alongwith his application dated 15.06.2015. As per the notification dated 13.03.2015 (Annexure P/6), the promotion under CAS had to be granted as per the guidelines issued by the UGC and it is clear that the said decision was taken to follow the norms of UGC in the 203 rd meeting of the Board of Directors and petitioner fulfilled the qualification as per the UGC norms and submitted his documents of five publications in terms of the broader instructions/norms by the UGC. The University notified the score Performa wherein 12 marks out of 100 have been allotted for 'published work during assessment period', which include research papers (Journals), book, 9 book chapter, research/extension bulletin/pamphlets etc. The norms of UGC contained in Table II (A)/II(2B) of Appendix III of the UGC Regulations on Minimum Qualification of Teachers those have been adopted and mentioned in the notification. The petitioner has published 03 research papers in journals, 02 books (published by JNKVV, bearing internal publication number), 04 bulletins, more than 20 extension articles, more than 10 pamphlets etc. and after calculation made according to the guidelines, it came to 151 and, therefore, there was no occasion for the respondents to deny the petitioner to be qualified for granting promotion under CAS in view of the qualification shown in the original notification, however, the respondents have changed the criteria in mid of the selection process and considered the claim of the petitioner as per the change criteria.

7. The petitioner has placed reliance upon the judgment of Supreme Court in the case of Secretary, A.P. Public Service Commission vs. B. Swapna and others - (2005) 4 SCC 154 in which relying upon a decision of State of J & K & others v. Sanjeev Kumar and others - (2005) 4 SCC 148, the Supreme Court has held as under:-

"14. The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by learned counsel for Respondent 1 applicant it was the unamended rule which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he 10 possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only. (See P. Mahendran v. State of Karnataka [(1990) 1 SCC 411 : 1990 SCC (L&S) 163 : (1990) 12 ATC 727] and Gopal Krushna Rath v. M.A.A. Baig [(1999) 1 SCC 544 : 1999 SCC (L&S) 325] .) Further in the case of K. Manjusree vs. State of Andhra Pradesh & anr.-(2008) 3 SCC 512, the Supreme Court has observed as under:

"33. The Resolution dated 30-11-2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee wants to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the Selection Committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no 11 minimum marks for the interview."

And in the case of Hemani Malhotra vs. High Court of Delhi - 2008(7) SCC 11 the Supreme Court has held as under:

"14. It is an admitted position that at the beginning of the selection process, no minimum cut-off marks for viva voce were prescribed for Delhi Higher Judicial Service Examination, 2006. The question, therefore, which arises for consideration of the Court is whether introduction of the requirement of minimum marks for interview, after the entire selection process was completed would amount to changing the rules of the game after the game was played. This Court notices that in K. Manjusree v. State of A.P. [(2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] the question posed for consideration of this Court in the instant petitions was considered and answered in the following terms: (SCC pp. 526-27, para 33) "33. The Resolution dated 30-11-2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee wants to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the Selection Committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also 12 secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview."

From the proposition of law laid down by this Court in the abovementioned case it is evident that previous procedure was not to have any minimum marks for viva voce. Therefore, prescribing minimum marks for viva voce was not permissible at all after the written test was conducted.

15. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva voce, but if minimum marks are not prescribed for viva voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva voce test was illegal."

Considering the above, it is clear that the law is very specific and very categorically provides that the rule of game cannot be changed once the game starts. As such the corrigendum dated 20.01.2016 (Annexure P/2) is liable to be quashed and the qualification as required in the corrigendum (Annexure P/2) is not applicable for the petitioner to be considered for promotion to the post of Professor and, therefore, he cannot be considered for promotion in view of the amended qualification as introduced by way of corrigendum dated 20.01.2016.

8. The respondents have taken stand showing reason as to why they were required to issue the said corrigendum to amend the eligibility qualification, but, I am not satisfied with the same and not convinced with 13 the stand taken by the respondents. In any case, as per the settled principle of law and in view of the law laid down by the Supreme Court (as quoted hereinabove), the eligibility criteria cannot be changed after starting the selection process and as such the corrigendum Annexure P/2 is liable to be quashed and cannot be made the basis for considering the case of the petitioner for promotion.

9. So far as the qualification of the petitioner is concerned, he has submitted the application alongwith the requisite qualification and as per the UGC instructions, which are mentioned in the notification itself, such as full length research paper published in proceedings of seminar/workshop carry weightage equal to paper/s published in Journals as per UGC category III "Research and Academic Contribution". A candidate is to fulfill minimum score required 120/250 and as per the details given by the petitioner, he secured 151 marks. The same stand has been taken by the petitioner in the representation showing that as to how he was eligible on the date of submitting application and securing eligibility qualification for considering him for promotion to the post of Professor. Since the petitioner was awarded Ph.D. on 28.04.2012, therefore, there was no justification for granting him promotion w.e.f. 27.11.2014 merely because he made an application for submitting additional documents. I am also not convinced with the contention raised by the learned counsel for the respondents that the petitioner submitted the additional documents alongwith the application dated 28.06.2016, it tantamounts to accept 14 the subsequent amended qualification. But it can be taken otherwise that the petitioner submitted additional documents just to show that even after adding amended qualification he was eligible to be promoted and this conduct of the petitioner cannot be considered since he has participated in the selection process and accepted the eligibility criteria at a later point of time, he cannot challenge the same. Here in this case, since the petitioner had submitted application in pursuance to the original notification substantiating his claim to be considered for promotion on the basis of original qualification which he had, but, ignoring the same if promotion has been granted taking note of the subsequent modified eligibility criteria, the petitioner's right to challenge his delayed promotion cannot be forfeited only on the ground that he moved another application in pursuance to the extended date and also brought additional qualification in the knowledge of the respondent-authority. The respondents have not disputed the fact that the petitioner did not possess the requisite qualification, which is prescribed in the notification dated 13.03.2015 (Annexure P/6), but, they have come with a stand that since the petitioner has also moved second application on 28.06.2016 and submitted additional documents in pursuance to the amended requisite qualification, he has no right to challenge the corrigendum/amended qualification as it is deemed that he has accepted the amended criteria and also participated in the selection then after being granted the promotion he cannot assail the same. The contention of the respondents that as per the amended 15 qualification the petitioner has submitted his 5 th publication on 27.11.2014 and, therefore, he was rightly granted promotion as per the said qualification is not acceptable. As already held above, the eligibility criteria cannot be changed after starting the selection process and, therefore, the claim of the petitioner for promotion for the post of Professor cannot be considered as per amended criteria and the stand taken by the respondents is, therefore, rejected.

10. In view of the discussion made hereinabove, the petition is allowed directing respondents to grant promotion to the petitioner on the post of Professor (CAS) w.e.f. 28.04.2012 instead of 27.11.2014. The orders dated 17.02.2017 (Annexure P/1) and 20.01.2016 (Annexure P/2) are hereby quashed. It is further directed that petitioner be also granted consequential benefits in pursuance to the directions given hereinabove as his date of promotion i.e. 27.11.2014 would be changed consequent to the order passed by this Court and he would be entitled to get promotion w.e.f. 28.04.2012.

11. In view of the discussion made herein above, this petition is allowed and disposed of. Parties shall bear their own cost.

(SANJAY DWIVEDI) JUDGE Raghvendra RAGHVENDRA SHRAN SHUKLA 2020.02.27 18:09:21 +05'30'

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