Gauhati High Court
Jagdish Patigiri vs Cotton University And 3 Ors on 3 February, 2020
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
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GAHC010211522019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 6613/2019
1:JAGDISH PATIGIRI
S/O LT. DEBENDRA NATH PATGIRI, R/O JIBAN KRISHNA PATH, HOUSE NO.
16, HENGRABARI, GUWAHATI, KAMRUP, ASSAM, PIN-781036
VERSUS
1:COTTON UNIVERSITY AND 3 ORS.
REP. BY THE REGISTRAR, PANBAZAR, GUWAHATI-1, ASSAM
2:VICE CHANCELLOR
COTTON UNIVERSITY
PANBAZAR
GUWAHATI-1
ASSAM
3:REGISTRAR
COTTON UNIVERSITY
PANBAZAR
GUWAHATI-1
ASSAM
4:SCRUTINY COMMITTEE
CONSTITUTED FOR PROMOTION TO THE POST OF PROFESSOR
REP. BY THE VICE CHANCELLOR
COTTON UNIVERSIT
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : MR. P D NAIR (SC, COTTON UNIVERSITY)
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BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
ORDER
Date : 03-02-2020 Heard Mr. J. Patowary, learned counsel for the petitioner. Also heard Mr. P. D. Nair, learned Standing Counsel, Cotton University for respondent Nos. 1 to 3.
As submitted by Mr. Nair, learned Standing Counsel, Cotton University, as far as respondent No.4 (Screening Committee) is concerned, as there is no such Committee in existence, this Court is of the view that presence or absence of respondent No. 4 may not have any relevance as far as the decision of the issue raised in this petition is concerned.
2. In this petition, the matter pertains to claim of the petitioner for promotion to the post of Professor in the Department of Philosophy in Cotton University under Career Advancement Scheme (CAS).
3. Career Advancement Scheme (CAS) as is well known and is a special window opened to deserving candidates to get promotion to the post irrespective of existence of any regular substantive vacancy to the higher post, which is personal to the incumbent in as much as a person appointed or promoted under the aforesaid Scheme would be deemed to be appointed to the higher post on his post held by him and on his retirement or relinquishing the said post to which the person is promoted it also gets extinguished and the original post remains.
The said Scheme is to be found as formulated by the University Grants Commission (UGC) under notification issued by the UGC, namely, University Grants Commission (Minimum Qualification for Appointment of Teachers and Others Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) Regulations, as amended in the year 2016 vide 4 th Amendment Regulation.
Page No.# 3/7 As per the aforesaid Scheme as contained in the said Regulations for the purpose of promotion to the post of Professor, one must have minimum 5 (five) publications since the period that the Teacher is placed in stage 3 i.e. the post of Associate Professor.
4. The petitioner is presently holding the post of Associate Professor and as such, when he made the claim for promotion to the higher post of Professor at stage 5 from the post of Associate Professor, he shall have to have minimum 5 (five) publications in addition to other requirements with which we are not directly concerned at this stage.
5. According to the petitioner, he submitted his application for promotion to the post of Professor under the aforesaid Career Advancement Scheme on 26.04.2018. However, belatedly, he was informed by letter dated 02.08.2019 that his application for promotion under the CAS Scheme has not been shortlisted for interview as per the Reports of the Subject Experts evaluating the category III of the Regulations relating to the publications.
6. Mr. Patowary, learned counsel for the petitioner submits that the aforesaid communication of the rejection of his application belatedly is contrary to the University Grants Commission Regulations of 2010 as notified on 30.06.2010. It has been mentioned under Para No. 6.3.1 of the aforesaid Regulations of UGC that a Teacher who wishes to be considered for promotion under the CAS may submit in writing to the university/college, with 3 (three) months in advance of the due date, and that he or she fulfils all qualifications under CAS and submit to the university/college the Performance Based Appraisal System Proforma as evolved by the concerned university duly supported by all the credentials as per the UGC Guidelines and Regulations. It has been further mentioned that in order to avoid delays in holding Selection Committee meetings in various positions under CAS, the University/College should immediately initiate the process for screening/ selection and shall complete the process within 6 (six) months from the date of application.
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7. However, contrary to the aforesaid time frame fixed by the University Grants Commission (UGC) to complete the process within 6 (six) months, the University authorities took more than 16 months, thereby causing serious prejudice to the petitioner in as much as the age of superannuation of any person holding the post of Associate Professor is 60 years, in which event, if the petitioner does not get promoted, he has to retire on 30.04.2020. On the other hand, if he gets the benefit of promotion to the post of Professor, the period of retirement will be extended upto 65 years, in which event, he would retire on 30.04.2025. However, because of the belated action of the authorities in rejecting the claim of the petitioner, even if, the petitioner is successful, if the authorities delay the matter further he will be deprived of the benefit of such extended period of service.
8. Be that as it may, the grievance of the petitioner relates to the rejection of his candidature on the ground that he does not possess 5 (five) publications. By drawing attention of this Court to the 17 publications which the petitioner submitted to the authorities for assessment of the API Score as required under the Rules, learned counsel for the petitioner submits that perusal of the said publications would indicate that, even if some of the Articles are not found suitable by the Subject Experts assessing the said publications, it cannot be said that all the remaining publications do not conform to the Regulations or norms. Further, the Experts were supposed to give their scores after making the assessment as claimed by the petitioner, which they did not do.
9. It has been submitted by learned counsel for the petitioner that it is only the Selection Committee which has the final say in the matters relating to promotion and the Selection Committee will deal and assess the said Self-Appraisal Marks given of the petitioner as well as Assessment given by the Experts and thereafter, take the final decision as per the eligibility and suitability and make necessary recommendation. It has been submitted that in the present case, the Subject Experts had rejected the candidature of the petitioner on the ground that the petitioner does not have five Page No.# 5/7 publication works and they have not given any API Scores. The leaned counsel for the petitioner contends that such procedure adopted by the University authority is vitiated and since there is a procedure lapse, this Court may intervene appropriately.
10. As regards the contention raised by the petitioner, it has been submitted by Mr. Nair, learned Standing Counsel, Cotton University that the Rules make it very clear that any application has to be first examined by the Subject Experts as to whether the applicant fulfils the necessary criteria for being considered by the Selection Committee. It is only when any applicant fulfils the conditions and criteria laid down under the Rules that the matter will be placed before the Selection Committee.
11. In the present case, the papers/publications submitted by the petitioner were scrutinized by an Expert. The said Expert apart from finding only one paper conforming the norm, did not find other publications conforming the norm, because of which, the University referred the matter to another Subject Expert to ascertain the view of the First Expert. Unfortunately, the second Subject Expert also agreed with the view of the First Expert.
In the result, the University found that the petitioner is not eligible. Accordingly, the University concluded that the petitioner did not possess the eligibility criteria of possessing minimum five publications and as such, since the petitioner did not fulfil the requirement, it was deemed not necessary to give the API score and accordingly, it was not placed before the Selection Committee.
12. Mr. Nair, learned Standing Counsel, Cotton University also produced the original records giving the assessment made by the 2 (two) Subject Experts in this regard.
13. This Court after having heard the learned counsel for the parties and perusal of the materials on record is of the view that apart from the issue of delay of which there will be reference later on, the core issue in this petition, is about non giving of any API score in respect of publications submitted by the petitioner.
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14. True, before a person can be considered for promotion, he has to first qualify the minimum requirements. Though the University in terms of the UGC norms has devised a method to ascertain the fulfilment of eligibility criteria, for which the publications were referred to a Subject Expert as to whether these publications conform to the norm, there may be some mechanism to review such decision of the experts, for those whose applications have been rejected by the experts or otherwise their cases will not be placed before the Selection Committee.
15. Since the petitioner has questioned the correctness of the assessment made by the Expert Body, there ought to be certain mechanism to resolve this issue, for the decision of such Expert Body may entail total deprivation of any claim for promotion. Thus, in absence of any mechanism for review such a decision may not be treated as final.
16. Perusal of the Regulations of UGC as well as the Rules framed by the University does not anywhere indicate that the finding given by the Expert Body is final.
17. Under the circumstances, this Court is of the view that, even if, the candidature of the petitioner is rejected at the stage of consideration by the Subject Experts for the purpose of short listing, it may not preclude examination by the Selection Committee.
18. Mr. Nair, learned Standing Counsel, Cotton University has suggested that perhaps the University will be willing to refer the matter to a Third Subject Expert, preferably in association with the UGC. This Court, however has felt that considering the fact that the petitioner otherwise in normal circumstances would retire on 30.04.2020 and any reference to UGC at this stage may entail further delay, it may adversely affect his promotion opportunities.
19. Accordingly, under the facts and circumstances, this Court has felt that since the Selection Committee still is the final authority as regards eligibility and suitability of the candidate, the interest of justice will be served if the matter is directly referred to Page No.# 7/7 the Selection Committee to examine his eligibility as well rather than referring to a Third Subject Expert at this stage to avoid any further delay in this regard. Learned counsel for the petitioner is also agreeable to the aforesaid course of action.
20. Accordingly, it is directed that the entire matter relating to the petitioner may be referred by the University to the Selection Committee concerned and the Selection Committee will make its own assessment and give their final API Score after making assessment of the publications submitted by the petitioner. The Selection Committee will accordingly make their own assessment of the suitability and eligibility of the candidates for promotion to the post of Professor in spite of the findings given by the two experts as mentioned above. In other words, the opinion of the two experts may not come in the way of the Selection Committee to make its own independent assessment as regards the API score.
21. Accordingly, the Cotton University authorities will refer the entire matter to the appropriate Selection Committee envisaged under the relevant Rules and Regulations, which shall undertake the exercise as directed above as expeditiously possible, preferably within 31st March, 2020 to avoid any delay in this regard.
22. It may be also observed that since this order has been passed with the consent of both the parties under the peculiar facts of the case, similar issues raised, if any, in future, shall be considered on its own merit and this order may not be treated as a precedent.
JUDGE Comparing Assistant