Allahabad High Court
Dr. Rituraj vs State Of U.P. And 2 Others on 15 November, 2022
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 36 Case :- WRIT - A No. - 5075 of 2021 Petitioner :- Dr. Rituraj Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ashish Kumar Srivastava Counsel for Respondent :- C.S.C.,Bhupendra Nath Singh,Manoj Kumar Singh With Case :- WRIT - A No. - 5641 of 2021 Petitioner :- Dr. Dharm Beer Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Pawan Kumar Counsel for Respondent :- C.S.C.,Bhupendra Nath Singh,Rijwan Ali Akhtar With Case :- WRIT - A No. - 6424 of 2021 Petitioner :- Dr. Shriprakash And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ashish Kumar Srivastava Counsel for Respondent :- C.S.C.,Bhupendra Nath Singh And Case :- WRIT - A No. - 7261 of 2021 Petitioner :- Dr. Neelam Kumari Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Alok Mishra Counsel for Respondent :- C.S.C.,Gagan Mehta Hon'ble Saumitra Dayal Singh,J.
1. Present four petitions involve similar questions, therefore, they are being disposed of by a common order.
2. Heard Sri Ashish Kumar Srivastava, learned counsel for the petitioners (in Writ-A Nos. 5075 of 2021 and 6424 of 2021) and Sri Pawan Kumar, learned counsel for the petitioner (in Writ-A No.5641 of 2021). [List has been revised. None has appeared for the petitioner in Writ-A No. 7261 of 2021].
3. Sri Ashok Mehta, learned senior Advocate assisted by Sri Gagan Mehta along with Sri Manoj Kumar Singh have appeared for Commission-respondent no.2 and Mr. Rizwan Ali Akhtar, learned counsel has appeared for the respondent-UGC.
4. All writ petitions have been filed to quash the press note dated 15.2.2021 and 24.2.2021 issued by Uttar Pradesh Higher Education Services Commission. Thereby, it was notified - the petitioners were ineligible to participate in the selection on the post of Principal at Aided Non-Government P.G. and Graduate Degree Colleges, pursuant to Advertisement No.49/2019 published on 2.3.2019.
5. Undisputedly, the cut-off date to apply under the above advertisement was 16/17.4.2019. It also has not been disputed by the Commission that the said date was later extended to 18.6.2019. Clause 6.1.3 of the said advertisement reads as below:-
"6.1.3 विश्वविद्यालय, महाविदयालयो एवं अन्य उच्च शिक्षण संस्थाओ में कुल 15 वर्षो के शिक्षण (Teaching)/ शोध (Research)/ प्रशासन (Administration) के अनुभव के साथ एसोशिएट प्रोफेसर (रीडर)/ प्रोफेसर।"
6. It is also not in dispute, in exercise of the powers conferred under clauses (e) and (g) of Section 26(1) of University Grants Commission Act, 1956, the University Grants Commission (Minimum Qualifications for appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) Regulations, 2000 (hereinafter referred to as 'the Regulations') have been framed.
7. The Regulations came into force on 30.6.2010. Clause 4.2.1 of the Regulations relating to Principal reads as below:-
4.2.1. PRINCIPAL i. A Master's Degree with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) by a recognized University.
ii. A Ph.D Degree in concerned/allied/relevant discipline(s) in the institution concerned with evidence of published work and research guidance.
Iii. Associate Professor/Professor with a total experience of fifteen years of teaching/research/administration in Universities, Colleges and other institutions of higher education.
iv. A minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS), as set out in this Regulation in Appendix III for direct recruitment of Professors in Colleges."
8. Then, with respect to count past services, Clause 10 and 10.1 read as below:-
10.0 COUNTING OF PAST SERVICES FOR DIRECT RECRUITMENT AND PROMOTION UNDER CAS 10.1 Previous regular service, whether national or international, as Assistant Professor, Associate Professor or Professor or equivalent in a University, College, National Laboratories or other scientific/professional Organizations such as the CSIR, ICAR, DRDO, UGC, ICSSR, ICHR, ICMR, DBT, etc. should be counted for direct recruitment and promotion under CAS of a teacher as Assistant Professor, Associate Professor, Professor or any other nomenclature these posts are described as per Appendix III - Table No. II provided that:
(a) The essential qualifications of the post held were not lower than the qualifications prescribed by the UGC for Assistant Professor, Associate Professor and Professor as the case may be.
(b) The post is/was in an equivalent grade or of the pre-revised scale of pay as the post of Assistant Professor (Lecturer) Associate Professor (Reader) and Professor.
(c) The candidate for direct recruitment has applied through proper channel only.
(d) The concerned Assistant Professor, Associate Professor and Professor should possess the same minimum qualifications as prescribed by the UGC for appointment to the post of Assistant Professor, Associate Professor and Professor, as the case may be.
(e) The post was filled in accordance with the prescribed selection procedure as laid down in the Regulations of University/State Government/Central Government/Concerned Institutions, for such appointments.
(f) The previous appointment was not as guest lecturer for any duration or an ad hoc or in a leave vacancy of less than one year duration. Ad hoc or temporary service of more than one year duration can be counted provided that.
(i) the period of service was of more than one year duration.
(ii) the incumbent was appointed on the recommendation of duty constituted Selection Committee; and
(iii) the incumbent was selected to the permanent post in continuation to the ad hoc or temporary service, without any break.
(g) No distinction should be made with reference to the nature of management of the institution where previous service was rendered (private/local body/Government), was considered for counting past services under this clause."
9. In such law, petitioner Dr. Rituraj (petitioner in Writ-A No.5075 of 2021) has set up a plea, he had necessary teaching qualification of 15 years computed from the date of his first engagement as Lecturer under Self-Financed Scheme (SFS in short), at Bundelkhand University, Jhansi. The certificate issued to that petitioner by the said University, dated 18.7.2006 reads as below:-
"To Whom It May Concern "This is to certify that Dr. Rituraj s/o Dr. Prakash Chandra Srivastava has been working in this University as Lecturer in English in the Institute of Languages since 5th February, 2004 in the following capacity:-
1. Lecturer (SFS) on fixed Salary Rs.8000/-pm from 5th February 2004 to 18th January, 2005.
2. Lecturer (UGC Regular Plan Post) in the scale of Rs.8000-13500/- w.e.f. From 19th January, 2005 till date.
(Sushil Kumar) Registrar"
10. Thus, it has been submitted, the Commission erred in rejecting the petitioner's candidature on the reasoning that that petitioner did not possess 15 years minimum teaching experience. The reason recorded to reject the eligibility of Dr. Rituraj reads as below:-
"आवेदन की अन्तिम तिथि को न्यूनतम 15 वर्ष की नियमित सेवा नहीं है।"
11. Dr. Dharm Beer Singh (in Writ A No. 5641 of 2021) claims eligibility of 15 years teaching experience at different private institutions as disclosed in his application form. He first claims to appointed as Professor (in-charge) at RSMT, U.P. College, Varanasi on 24.10.2000. Thereafter, he claims to have worked without break in between, as Professor at EMPI, New Delhi; Director, IMT, Phagwara; Director, NIET, Greater NOIDA; Director GNIOT, Greater NOIDA; Director Lord Krishna Group of Institutions and, Group Director, IEC Group of Institutions. In short, that petitioner claims well over 15 years continuous teaching experience from 24.10.2000 up to the cut-off date 18.6.2019. The Commission rejected his eligibility for the following reason: -
"अभ्यर्थी विभिन्न प्राइवेट संस्थाओ मे कार्यरत है 15 वर्ष की नियमित सेवा पूर्ण नही करते है।"
12. Then, the claim of the petitioners Dr. Shri Prakash and Dr. Sunita Arya (involved in Writ-A No.6424 of 2021), is - they held honorary positions at different degree colleges and earned eligibility of 15 years teaching experience well before the cut-off date. Those claims have been rejected by the Commission for the following reasons: -
"आवेदन की अन्तिम तिथि को नियमित निरन्तर सेवा न्यूनतम 15 वर्ष से कम है।"
"आवेदन की अन्तिम तिथि को न्यूनतम 15 वर्ष की नियमित सेवा नही है।"
13. Petitioner Dr. Neelam Kumari (in Writ-A No.7261 of 2021), claims eligibility of teaching experience against appointment made on honorary basis at R.K. (PG) College, Shamli. Her candidature has been rejected by the Commission for the following reason: -
"आवेदन की अन्तिम तिथि को नियमित निरन्तर सेवा न्यूनतम 15 वर्ष से कम है।"
14. On such pleadings and in the backdrop of law noted above, it is vehemently urged by learned counsel for the petitioners that the eligibility qualification required to be fulfilled by the petitioners for selection on the post of Principal at Degree Colleges is that as prescribed under Advertisement No.49/2019, relevant clause 6.1.3 (quoted above). Even as per the UGC guidelines eligibility stood earned by the petitioners under Regulation 4.2.0. Regulations 10.0 and 10.1 are wholly inapplicable and extraneous to the present dispute. According to learned counsel for the petitioners, Regulations 10.0 and 10.1 of the Regulations are in the first place applicable only to promotion under Career Advancement Scheme (CAS in short). Second, it has been strenuously urged, even if those Regulations were to be read for making direct recruitment, it would remain confined to appointment on the post of Assistant Professor or Associate Professor or Professor. That is clear from the plain reading of Regulation 10.1 (main part). Third, it has been submitted, wholly generic objection has been raised to reject the candidature of the petitioners. No specific objection has been raised with respect to any of the special clause (a to f) of Regulation 10.1. Fourth, insofar as the honorary engagement is concerned, relying heavily on the decision of the Division Bench of this Court in Dr. Vandana Vashistha vs. State of U.P. and 4 others (Writ-A No.32088 of 2017) decided on 20.3.2018, it has been submitted - teaching experience cannot be qualified by or restricted to the nature of engagement, whether on honorary or ad-hoc, etc. Relying on that principle it has been submitted, insofar as petitioners were paid amount equal to grade pay payable on the post of Assistant Professor/Lecturer (on the date of their engagement under Self-Financed Scheme or on honorary basis), the services rendered by each petitioner and the teaching experience acquired by them in that capacity had to be included in computing 15 years teaching experience. Last, it has been submitted - in case of doubt, the Commission ought to have allowed interviews to be held whereafter appropriate opportunity to contest the correct position may have been offered to the individual petitioner before his candidature may have been rejected.
15. On the other hand, Shri Ashok Mehta senior Advocate and Shri Manoj Kumar Singh learned counsel appearing for the Commission would contend - the conditions of the advertisement referred to by learned counsel for the petitioners cannot be read in isolation. There can be no exception to the law - the selection pursuant against the above advertisement had to be made in accordance with law enforced by the UGC. While it is true, Regulation 4.2.0 specifies the qualifications for the post of Principal, Regulation 10.0 and 10.1 provide for the manner in which such qualification or eligibility may be earned. Relying on the very language of Regulation 10.0, it has been urged, the same would apply both to direct recruitment and to CAS. Therefore, only regular service rendered on the post of Assistant Professor or Associate Professor or Professor may be counted for the purposes of direct recruitment. Inasmuch as the petitioners had not rendered regular service for the length of 15 years contemplated under Regulation 4.2.0 (iii), they remain ineligible. Relying heavily on the proviso (a to f) of Regulation 10.1 of the Regulations, it has been strenuously urged that the service rendered must be in equivalent grade or pre-revised scale. Further, the appointment on post on which previous service may have been rendered must be one for which application may have been made through proper channel only. Last, no service rendered as Guest Lecturer or on adhoc basis or on leave vacancy may be counted for the purpose of eligibility of teaching experience unless that service had been rendered for at least one year and such applicant had been selected on permanent post in continuation to such adhoc service, without break. Since these conditions had not been fulfilled, the candidature of the petitioners were rightly rejected. In absence of any patent error in that rejection made by the Commission, no mandamus may be issued to compel the Commission to grant interview to the petitioners.
16. Sri Ashok Mehta, learned senior Advocate has relied on the decision of the Division Bench of this Court in Ram Darash Yadav vs. State of UP and others, 2019 (1) ADJ 175, wherein it has been observed as under:-
"34. Experience of a person working as a Lecturer in regular capacity or as part time or Guest Lecturer cannot be equated since it all differ in quality, quantity and various other aspects. A Lecturer regularly appointed is not supposed to only take lectures in the College but he has to perform various other duties also in the capacity of his appointment as Lecturer on regular basis. A part time Lecturer discharge duties for a smaller length of period in a day and a Guest Lecturer is required to take lectures in the classes and nothing more than that. The term "Teaching Experience" contemplates an experience in composite form which is to be performed by a Teacher whether he is working as Lecturer or in any other capacity."
17. Having heard learned counsel for the parties and having perused the record, in the first place, it cannot be disputed that the University Grants Commission by virtue of its statutory status and function does have the authority to prescribe the qualification to be possessed for appointment on the post of Principal at a degree college. That position in law has also not been contested by the learned counsel for the petitioners.
18. Insofar as particular Regulations are concerned, Regulation 4.2.0 provides for the qualification namely 55% marks in Master's Degree; Ph.D. Degree with evidence of published work and research guidance; teaching experience of fifteen years in institutions of higher education by a person holding the post of Associate Professor or Professor and minimum score stipulated in the Academic Performance Indicator (API) based performance Based Appraisal System, as set out in Appendix III to the Regulations.
19. Other than specifying such eligibility, Regulation 4.2.0 does not provide or disclose the mechanism to compute 15 years teaching experience and it also does not prescribe the minimum API as per Regulation in Appendix III. Regulation 4.2.0 (iii) is silent with respect to mode and/or manner to acquire 15 years teaching experience. Therefore, it becomes relevant to consider the language of Regulation 10.0 (which has already been quoted above).
20. Plainly, it provides for inclusion of past services rendered by them for the purpose of direct recruitment and also for promotion under CAS. There is nothing in the language of Regulation 10.0 and/or 10.1 or any other Regulation as may lead the Court to draw an inference that the same would apply only to promotion under CAS. The submission to the contrary advanced by learned counsel for the petitioners is plainly against the unambiguous language used in that Regulations. It applies both, to direct recruitment and promotion.
21. It is not difficult to accept and apply Regulation 10.0 and 10.1 to cases of direct recruitment as well, for another reason. Teaching experience may be acquired by a teaching faculty at a degree college while working as an Assistant Lecturer/Assistant Professor or Lecturer/Associate Professor or Professor or on such other post as may be permitted under the particular law. However, the post of Principal of a degree college is not one which stands higher in hierarchy of teaching positions. Those posts are confined and limited to the posts of Lecturer/Assistant Professor, Lecturer/Associate Professor and Professor. No other or higher post exists in the academic field as may allow for teaching experience to arise thereon, in any manner independent of that, may arise on the three posts noted above.
22. The appointment of a Principal at a degree college, through any source is only to provide an administrative head of such institution. The Principal may or may not discharge teaching duties while working in that capacity. Therefore, teaching experience contemplated under Regulation 4.2.0 (iii) has to be read - as acquired on the posts of Assistant Professor or Associate Professor or Professor, only.
23. Also, Regulation 10.1 provides for the manner in which any Assistant Professor/Associate Professor or Professor may acquire teaching experience. That Regulation has to be read into Regulation 4.2.0 (iii). Any other interpretation may lead to absurd results. If accepted it would allow for a possibility to arise where a person may not acquired teaching experience for the purpose of clause 10.1 and therefore, no benefit may arise to such person for appointment and promotion on such posts, however, for the purposes of seeking appointment on the post of Principal he may seek inclusion of such service and avail benefit of appointment as Principal. Such an interpretation would be conflicted and absurd. Therefore, the submission advanced by learned counsel for the petitioners cannot be accepted. It would lead to a wholly anomalous situation which is wholly avoidable on the construction referred above.
24. Therefore, the eligibility conditions for the purpose of direct recruitment and promotion on the post of Assistant Professor or Associate Professor or Professor contained in Regulation 10.1 of the Regulations have to be read into Regulation 4.2.1.
25. Seen in that light, proviso (f) to Regulation 10.1 is very specific. It does not allow inclusion of service rendered as Guest Lecturer or ad hoc or in leave vacancy if such service was for a period of less than one year. Second, even if such service is found to have been rendered for more than one year, it may still not be included in teaching experience unless that appointment was made by a duly constituted selection committee and that person was further selected on the permanent post, in continuation to ad-hoc or temporary service, without break.
26. Then, under proviso (b) of Regulation 10.1, the service rendered in any capacity cannot be included for the purpose of teaching experience unless it was rendered in grade equivalent to that Assistant Professor (Lecturer) or Associate Professor (Reader) or Professor, or pre-revised scale.
27. Further, under proviso (c) to that Regulation, the appointment against which benefit of teaching experience is claimed, should have been made through proper channel only.
28. Also, under proviso (e) of that Regulation, the post (on which teaching experience is claimed) should have been filled in accordance with selection procedure prescribed by the law.
29. In absence of any direct challenge raised to validity of Regulation 10.0 and 10.1 in this batch of petitions, there is no room to examine its validity. Read plainly, it leads to the conclusion that the petitioners must be seen to possess teaching experience in accordance thereof. The judgment relied upon by learned counsel for the petitioners in the case of Dr. Vandana Vashistha (supra) is plainly distinguishable. In that case the Division Bench reached the conclusion of teaching experience acquired under Self-Finance Scheme (SFS) to be a valid teaching experience for the purpose of Section 2(19) of the U.P. State Universities Act, 1973. That provision of law read as below:-
"(19) "Teacher" in relation to the provisions of this Act except Chapter XI-A, means a person employed in a University or in an institute or in a constituent or affiliated or associated college of a University for imparting instructions of guiding or conducting research in any subject or course approved by that University and includes a Principal or Director];
30. As is clear from the plain reading of that provision, there was no stipulation under that law as may be considered pari materia to Regulation 10.1 of the Regulations. In absence of any clause similar to proviso (a to f) of that Regulation, the law relied upon by learned counsel for the petitioners becomes distinguishable. Under that Act there was no stipulation or linkage between teaching experience gained, with the post held (on which that experience may be acquired). In the present case, as noted above, that strong connection clearly exists. Not only the post, more crucially, the manner of appointment, status, length of service, pay scale consideration must be fulfilled before the experience gained thereon may qualify as teaching experience. Therefore, no benefit may be had to the decision of Dr. Vandana Vashistha (supra).
31. Coming to the facts of the present case, it is true that Dr. Rituraj claims appointment under Self-Financed Scheme on fixed salary of Rs.8000/- per month on 5.2.2004. He worked in that capacity and on that post till 18.1.2005. Thereafter he appears to have been regularly selected in the scale of Rs.8000/ - Rs.13500/- per month, in Lecturer Grade, on 19.4.2005. The further documents annexed by the said petitioner pertaining to his promotion under CAS reveal, even for that purpose, his initial appointment was taken to be on 19.1.2005 and not 5.2.2004.
32. Thus, in view of the discussion made above, in the first place, that petitioner had not worked on any post in an equivalent grade or a pre-revised scale. Then, having worked for less than one year as lecturer under Self-Finance Scheme (from 5.2.2004 to 18.1.2005), that service may never be included for the purpose of teaching experience by virtue of proviso (f) to Regulation 10.1. Therefore, in the context of objection being raised by the Commission that claim made cannot be accepted.
33. Insofar as Dr. Dharm Beer Singh is concerned, that claim has been rejected by the Commission occasioned solely by the reasoning that that petitioner had earned service at private institution. No other objection appears to have been taken. Proviso (g) of Regulation 10.1 of the Regulations (quoted above), includes such service for the purpose of computing teaching experience. Therefore, the stand of the Commission to reject the claim of that petitioner solely for the reasons of his having rendered service at private institution, is untenable in law. The rejection of the claim made by Dr. Dharm Beer Singh is therefore set aside. The matter is remitted to the Commission to reconsider that claim in the light of observations made above within a period of two weeks from today. Thereafter the Commission may proceed accordingly to grant all consequential in law, in a time bound manner.
34. In so far as petitioners Dr. Shri Prakash, Dr. Sunita Arya and Dr. Neelam Kumari are concerned, the petitioners worked on fixed pay/honorary basis, their claims are found to be similar to those of the petitioner Dr. Rituraj. Therefore, no error is found in rejecting those claims of those petitioners.
35. In view of the fact that the issue has been raised, discussed and dealt with on merits first, the other grounds raised by learned counsel for the petitioner pale into insignificance.
36. In view of the above, Writ- A No.- 5075 of 2021, 6424 of 2021 and 7261 of 2021 are dismissed. No order as to costs.
37. Writ-A No. 5641 of 2021 is partly allowed. No order as to costs.
Order Date :- 15.11.2022 SP