Central Administrative Tribunal - Ernakulam
Dr Babitha Justin vs D/O Space on 19 December, 2017
1 0A1180/01215/2013
Central Administrative Tribunal
Ernakulam Bench
0A1180/01215/2013
, the.(9of December, 2017
CORAM
HON'BLE Mr.U.SARATHCHANDRAN, JUDICIAL MEMBER
HON'BLE Mr. E.K.BHARAT BHUSHAN, ADMINISTRATIVE MEMBER
Dr. Babitha Justin, age 38 years
W/o M.N.Parasuraman
Reader, Department of Humanities
Indian Institute of Space Science and Technology
Valiamala P.O., Thiruvananthapuram-695 022.
Residing at "Souparnika" --
NSS Karayogam Lane, Anayara P.O.
Thiruvananthapuram-695 025. Applicant
(By Advocate: Mrs. Sumathi Dandapani, Sr.)
Versus
I. Union of India represented by its Secretary
Department of Space, Govt of India
Anthareeksha Bhavan, New B.E.I. Road
Bangalore-560 094.
2. Union of India represented by its Secretary
Ministry of Human Resources ev1opmënt:
Department of Higher ducation ' -
New De1hi-11O.0Of." ...
3 Indian Instituteof Space Science and Technology
represented by its Director
Valiamala P.O.,Thiruvananthapuram-695 022.
4. University Grants Commission
represented .by its Secretary
Selection and Award Bureau
Bahadur Shah Zafar Marg
New Delhi-hO 002. Respondents
(By Advocate: Mr.N.Anilkumar, Sr.PCGC/Ms.Tanuja)
(tq. 5.. aft)
2 OA/180/01215/2013
This OA having been heard on 7'November, 2017, the Tribunal
delivered the following order on%7:..° "7
ORDER
By E.K.Bharat Bhushan, Administrative Member The applicant is presently working as Reader in the Department of Humanities, Indian Institute of Space Science and Technology, Thiruvananthapuram. Her grievance is against the denial of promotion to the post of Associate Professor under the Career Advancement Scheme of the University Grants Commission's Regulations, 2010.
2. The facts of the case in brief are thus:
The applicant, a post-graduate in English, with M.Phil from Jawaharlal Nehru University, was appointed as Lecturer in the Department of English, North Eastern Hill University, Meghalaya; on 7.5.2002. She completed her Ph.D in 2007. While continuing as Lecturer in the North Eastern Hill University, the applicant applied for the post of Lecturer under the third respondent-her present employer. This was in pursuance to Annexure Al notification issued by Indian Institute of Space Science and Technology (31d respondent). After due process of selection and interview, the applicant was appointed as Lecturer w.e.f. 10.9.2007 in the said institute. Her appointment order dated 24.9.2007 is at Annexure A2. The Indian Institute of Space Science and Technology was constituted by the Department of Space (lst respondent) for the purpose of providing high quality Undergraduate and Postgraduate education in space technology and space science. The said institute is recognized as a 'deemed university' by the University Grants 4
3 OA/180/01215/2013 Commission (UGC) as provided under Section 3 of the UGC Act, 1956. The posts notified by the Institute carry the pay scales as recommended by the Central Pay Commissions from time to time. The administrative control of the institute vests with the Board of Management who have powers to create teaching and non-teaching posts and also to make appointments to the post of Professor, Associate Professor and Assistant Professor. It was not authorized to create or continue with posts of Lecturer/Reader.
3. As per Annexure A-4 communication issued by the Department of Higher Education, dated 31.12.2008, the applicant who was holding the post of Lecturer was to be placed in the re-designated post of Assistant Professor in Pay Band III in the scale of pay of Rs.15,600-39,100 with Academic Grade Pay (AGP) of Rs.6000/- and on completion of 4 years, was to be accommodated in the AGP of Rs.7000/- with effect from the year 2011. In other words, she was entitled to the benefit of Annexue A4. notification. This benefit was not granted to the applicant. Hence the applicant has approached this Tribunal with the present OA seeking the following reliefs:
Declare that Annexure A4 not?/Ication issued by the Union of India and the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Measures for Maintenance of Standards in Higher Education) Regulations, 2010 are applicable to the 3' respondent University in toto. Set aside Annexure A 7 amendment to the Recruitment Regulations of 3' respondent Institute to the extent it is in variance with Annexure A4 and the UGC Regulations, 2010 and Annexure A9 order issued by the 3' respondent.
Dfrect the 3' respondent to implement Annexure A4 notfIcation issued by the Union of India and the University Grants Commission ((Minimum Qua4flcations for Appointment of Teachers and other Measures for Maintenance of Standards in Higher Education) Regulations, 2010.
4 OA/180/01215/2013 Dfrect the 3' respondent to amend Annexure A 7 Recruitment * Regulation in accordance with UGC Regulations, 2010.
Direct the 3' respondent to implement Annexure A4 not Wcation issued by the Union of India and the University Grants Commission (Minimum Qual?flcations for Appointment of Teachers and other Measures for Maintenance of Standards in Higher Education) Regulations, 2010 and to grant consequential placement and benefits accommodating the applicant in the post of Assistant Professor, and granting further promotion as Associate Professor in the respective pay scales.
4. The applicant contends that the third respondent had brought out an amendment to its Recruitment and Review Rules as per the decision of the Board of Management taken on 12.5.2009, as per which the posts of Lecturer and Reader have become obsolete. The qualification prescribed for the post of Assistant Professor was amended as "Ph.D in Engineering/Science/Humanities , with visible reach out". Likewise, the qualifications for Associate Professor and Professor were also amended to the detriment of the applicant and in violation of the UGC norms (Annexure A7). She further contends that the applicant who was duly entitled and eligible to be re-designated as Assistant Professor and granted Career Advancement Scheme promotion to the post of Associate Professor was made to stagnate in the post of Lecturer. The applicant submits that she was in the meantime promoted to the post of Reader as per the amended rules on completing residency period of 4 years, but without counting the past service spent at the North East Hill University. This was against the UGC Regulations, 2010, which came to be issued, superseding all other earlier Recruitment Rules and regulations. The applicant made various representations to the 3rd respondent requiring them to redress her grievances and to grant appropriate promotions.
5 OA/180/01215/2013 However, her request was rejected vide Annexure A9 order. Denial of promotion under Career Advancement Scheme to the post of Associate Professor and granting promotion to the post of Reader, a post which had become obsolete, was against the provisions of UGC Regulations 2010 as well as Annexure A4 notification issued by the Union of India. Reliance has been placed on the judgment rendered by the High Court of Kerala in Baby Chakrapani Vs. Cochin University of Science and Technology and others, 2010 (3) KHC 583, which held that the provisions in variation with UGC regulations were redundant and directed immediate amendment of the same.
Respondents 1 & 3 filed reply statement, additional reply statement and 2" additional reply statement to which the applicant filed rejoinder, additional rejoinder and 2" additional rejoinder respectively.
The respondents contend that the Institute (3rd respondent) has been meeting all the basic requirements of UGC in academic matters after getting the status of 'Deemed University' in July 2008. Due to significant proliferation of IlTs in the country where induction of faculty was done with fresh Ph.D, it was decided, as a policy matter, to induct faculty at the level of Assistant Professors and above in the lIST from 2009 onwards for creating a world class educational institute of excellence with the unique aim of integrating education with high technology research in the areas of space technology, space science and space applications. It is further contended that the department had specified minimum residency period in the existing grade/post for being considered for promotion to the next higher grade/post. Those who complete the residency period in the feeder post will be first 6 OA/180/01215/2013 considered for screening by the duly approved Screening Committee. All candidates who meet the residency requirement for promotion to the next level are required to submit their work report together with published journal papers.
7. The applicant was considered for selection as 'Lecturer' only with reference to her qualification and experience. The services rendered by the applicant prior to her joining the Institute will be reckoned for the purpose of pensionary benefits and not for review purposes as per the Govt of India orders on the subject. Considering the said previous services for the purpose of placement of the applicant in the post of Assistant Professor in the AGP of Rs.6000, if directed to do so, as per the MHRD notification and UGC regulations, 2010 would be detrimental to the career growth of the Assistant Professors already inducted in the Institute in the Grade Pay of Rs.76001-. In order to be at the native place at the earliest opportunity, the applicant herself had volunteered to apply for the post of Lecturer fully knowing that she was entitled for pay revision and scheme of promotion as existing in the Department of Space/ISRO as per Annexure Al. Having opted to join the post of Lecturer for her own personal reasons and on her own volition, she caimot stake claim for parity and placement in higher positions without any basis and at the cost of general interest. Even going by the UGC scheme, the applicant would become entitled for promotion/placement in the post of Associate Professor only on 10.9.2019.
8. It is specifically contended by the respondents that the applicant cannot claim parity with the directly recruited 'Assistant Professors' just because she 7 OA/180/01215/2013 has PhD and teaching experience. Three Lecturers appointed in 2007 including the applicant were promoted as Readers in 2011 and as Assistant Professors on 14.8.2015 on completion of the stipulated residency periods in each feeder cadre as per Merit Promotion Scheme (MPS).
The UGC Regulations are, only recommendatory or advisory in nature and the same is not mandatory and binding on the State Governments and other Deemed Universities who are not drawing funds from UGC. Moreover, there was no requirement of Assistant Professor in English, as there were already two Lecturers in English. Had there been any such requirement, the applicant too would have got an opportunity to apply against such requirement along with the candidates from the open market as she was meeting the recruitment norms for the post. Consideration for promotion is based on the residency period fixed in each cadre.
Promotion norm of Reader + 4 year residency period cannot be replaced with the recruitment norm of Ph.D with 'visible research output' for promotion from Reader to Assistant Professor. Once inducted in the academic cadre, the career growth of all the faculty members is governed by the Merit Promotion Scheme (MPS). The applicant who joined in the lower cadre of 'Lecturer' while pursuing Ph.D and secured Ph.D after four months ofjoining, can have ,career growth only through the normal promotion channel, which is not at all violative of Articles 14 & 16 of the Constitution of India. It is further stated that the applicant herself is uncertain of what she really wants as evidenced in the reliefs sought for, and hence the OA is liable to be rejected.
8 OA/180/01215/2013 Smt.Sumathi Dandap, Sr. Counsel appeared for the applicant and Sri N.Anilkumar, Sr.PCGC appeared on behalf of the respondents. Counsel on both sides were heard and all pleadings examined.
The applicant's grievance is against what she alleges to be discrimination in her service. She was inducted as Lecturer in 2007 and was in place when the institution opened. She had joined the Department of Humanities in the respondent institution. She acquired Ph.D from the University of Hyderabad in 2008. To begin with, the academic positions in the institute had a 5 tier structure as below:
(i) Lecturer (ii) Reader (iii) Assistant Professor (iv) Associate Professor and (v) Professor In 2009, the institution was declared as a "deemed to be UGC institution". The contention of the applicant is that by virtue of its status as a deemed university, the respondent institution is duty bound to follow all regulations issued by the Ministry of Human Resources Development in respect of academic as well as service related matters. Two of the regulations are at Annexure A4 and at Annexure AT Once the institution was declared as a deemed university w.e.f. 3.7.2008, the academic structure was changed into a 3 tier structure consisting of Assistant Professor, Associate Professor and Professor with respective pay bands. Unfortunately, the applicant continued to languish as Lecturer until she came to occupy the position of Reader in 2011 It is maintained that the applicant has been discriminated against as two other disciplines in the same Humanities Department viz., Management, joined other scientific departments in recruiting Assistant Professors at entry
9 OA/180/01215/2013 level from 2009 onwards whereas the applicant, despite possessing a Ph.D with visible research output that qualifies as minimum academic qualification for entry level, continued to stagnate at the level of Lecturer. Further, it is stated that when raw recruits with Ph.D could seek entry as Assistant Professors from 2009 onwards, the applicant, a Ph.D with several years of teaching experience prior to joining the respondent institute, was confined at a level, two ranks below. The irony of the situation, according to the applicant, is further accentuated by the fact that after adoption of the UGC regulations, there were no sanctioned posts of Lecturer or Reader.
14. The main contention of the respondents is to the effect that theirs is an institute which is a unique one of its kind. It is registered under the Travancore Cochin Charitable Societies Act and has attained a very high professional profile and standing, being declared as the Indian Institute of Space Technology and directly coming under the Department of Space under the Prime Minister. The Board of Governors is the authority for creation of posts in the organization. It is admitted that as per notification dated 3rd July, 2008, the-institute had achieved 'deemed to be university' status under Section 3 of the University Grants Commission Act, 1956. While the UGC institutions are required to follow scales of pay for its academic personnel with matching eligibility requirements, the respOndent institute has retained for itself the right to have its own scales of pay and service conditions, which are revised from time to time in accordance with various Central Pay Commissions. It is also maintained that these conditions of service are superior and more beneficial to personnel than what the UGC has prescribed.
10 OA/180/01215/2013
15. With regard to the case of the applicant, the respondents point out that she had willingly joined the institution as Lecturer on account of the fact that she would be posted in her native State. She came to acquire Ph.D subsequently. However, she cannot claim, as an employee prior to the adoption of . UGC regulations, to be automatically inducted to the level of Assistant Professor which is the entry level for the institute. It is strongly maintained that by virtue of the fact that the institute does not receive any funding under the UGC scheme, it is not bound to adopt and follow the UGC regulations in toto. Besides, the applicant was subsequently promoted in 2015 to the level of Associate Professor. Adoption of the conditions mentioned in A4 & A7 annexures would actually lead to erosion in emoluments of the existing employees and could bring about an anarchistic situation. The applicant is eligible for further advancement in her career at proper time as per merit based system now in operation.
The applicant's counsel cited a judgment of the Hon'ble High Court of Kerala in Writ Petition No.180 of 2013 in support of hio contention that conditions enshrined in Govt of India regulations on academic matters should be automatically implemented in an affiliated institution. However, the subject involved in the judgment is one of stepping up of pay and hence this case does not provide a comparative illustration.
The respondents, on their part, have cited the judgment in Jagdish Prasad Sharma and Others vs. State of Bi/zar and Others, (2013) 8 SCC 633, which delved into responsibility of the State with respect to adoption of regulations framed under the UGC Act in institutions under the State 11 1 OA/180/01215/2013 Government. The above said order entitles a State Government to enact comprehensive laws pertaining to service conditions of teachers and other staff of State Universities, which may be different from those under the UGC Act.
We have examined the case in detail. The OA is replete with details about the discrimination suffered by the applicant due to her having to stagnate as a Lecturer despite possessing all qualifications for being designated as Associate Professor. She had Ph.D in her possession with requisite teaching experience, which was more than what was possessed by new entrants who entered as Assistant Professor from 2009 onwards. She had been inducted into the Department of Humanities, even within which disciplines such as sociology and management, recruited personnel as Assistant Professors. However, owing to the fact that there were no vacancies in the language stream, she continued to languish as Lecturer. In the OA, she has described in detail the disparity in remuneration between her as a Lecturer/Reader and an Assistant Professor which is a superior grade. Despite elevation as Reader in 2011, this disparity persists. During arguments, it was acknowledged that she had become Assistant Professor in 2015. However, many have gone past her, who were recruited much later.
But all through the OA, the applicant has made it an institutional issue more than an attempt at setting right an individual wrong. Interestingly, the four reliefs sought in the OA are exclusively about her demand to get UGC regulations adopted in toto by the respondent institution. She looks at it as a solution to her problems as once the demand is accepted she could count her 12 OA/180/01215/2013 service from 2009 as Assistant Professor. However, there are two difficulties in her path if she adopts this course. These are enumerated below:
20. As stated by the respondents, the institution involved is a unique one. It is a flagship Institute of Science directly under the Space Commission overseen by no less than the Prime Minister of India. It was set up to provide finely-honed talents for Indian Space Research Organization (ISRO) and its institutions. It adopted a 'deemed to be university' status in 2009. Many of its terms governing service conditions are superior to those prescribed under the UGC. The institution is governed by a Board of Governors who have overriding powers with respect to service matters. We have closely looked at the UGC Regulations, published in the Gazette of India dated 1 8th September 2010. We could not discern any condition that a 'deemed to be institution' under the UGC must adopt the scales of pay prescribed in the notification unless it is funded by the UGC. The respondents have clearly stated that they receive no funding whatsoever from UGC/Human Resources Ministry. So there can be no compulsion on this nor can there be an automatic adoption.
On the practical side also, it is seen that the terms enjoyed by the staff in the respondent institute are superior to those prescribed under the UGC regime. In the event of adoption of the UGC structure as demanded by the applicant, a very large number of employees' benefits will have to be pruned down which naturally could lead to a situation of anarchy. So we see no reason to accede to the claim pressed by the applicant.
21. While going through the details of the applicant's service in relation to other employees, we do discern a certain amount of misfortune which has 13 OA/180/01215/2013 stalked her career. For no fault of hers, there has been no recruitment at the entry level (Assistant Professor level) in her chosen discipline under the Department of Humanities since the UGC Regulations were adopted. As a result of this, the Assistant Professor level which would have been hers in 2009 was reached by her only in 2015. This is an internal issue which the decision makers within the respondent institution should address. The reliefs sought for do not extend to asking for any personal benefits and instead are concerned only about a need to adopt the UGC Regulations, going on to argue that it is a sine qua non once an organization becomes a 'deemed university' under the UGC. Clearly we cannot go beyond the reliefs 0 which have been sought by the applicant in the OA and order any individual benefits in favour of the applicant.
22. Due to the above reasons, we regret our inability to interfere in this case. We reject the OA concluding that it is not mandatory for a 'deemed to be university', which does not receive any funding from the UGC, to adopt in toto the conditions mentioned in the Regulations especially when there is a case made out that the institution concerned has even better terms in existence. While doing so, we also are of the view that given the applicant's academic credentials, her case for betterment in service, if taken up with the respondent No.3, should be sympathetically considered. No order as to costs. (E.K..
Lharat Bhushan) (U. Sarathchandran) Administrative Member Judicial Member aa.