Andhra Pradesh High Court - Amravati
The Present Writ Petition Is Filed Under ... vs Union Of India on 13 July, 2023
THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
WRIT PETITION No.14878 OF 2021
ORDER:-
1. The present Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief:
"... to issue Writ of Mandamus or any order or direction declaring the action of Respondent University in promoting ineligible Juniors overlooking the petitioners candidature vide Proc.No.8125/Ser.I/CAS/(Stage.II)/2018, dated 08.10.2018 and further rejecting the petitioners claim of "Counting of past ad hoc Service/Experience for future promotions" vide Memo No.3350/Ser.I/2016, dated 02.06.2021 following non statutory "SVVU Regulations 2010 & 2018" adopted by the Government of A.P., as being arbitrary, illegal and violative of Articles, 14,16,19(1) (g), 21, 300A and 309 of the Constitution of India, besides holding it as a civil contempt of not following the law well settled by Hon'ble Apex Court, other Hon'ble High Courts on the issues of strict enforceability of UGC Regulations in State Universities and counting of past ad hoc service of teachers for promotions, in spite of such clear exposition of law been brought to the notice of the Respondents University on multiple occasions and consequently direct the 1st and 3rd respondents to count the petitioners past ad hoc teaching & Extension service as "Qualifying Experience" for both direct recruitment and CAS promotions conferring all consequential benefits along with the interest for the duration of delay in promotions from the date of eligibility period and further direct 1st and 3rd respondents to correct the dates of CAS promotions of "NET Relaxed Recriters" from date of acquiring NET qualification i.e., date of declaration of NET exam Result and consequently direct the 4 th respondent to recover the losses incurred to public exchequer in accordance with clause 5(39) of APHERMC Regulations 2020 for unlawful action of erring officials in conferring illegal promotions by violating statutory UGC Regulations, in the interest of justice and pass such other order or orders..."
2. The petitioner, a Veterinary postgraduate, successfully completed his master's degree in 2012 from the prestigious Indian Veterinary Research Institute (IVRI). In that same year, he also qualified the National Eligibility Test (NET), which is a mandatory requirement for assuming a teaching NV,J W.P.No.14878 of 2021 2 position within the University/College system. Subsequently, on 01.10.2012, the petitioner was appointed as a "Research Associate" in the vacant position of Assistant Professor at KVK, Garikapadu, which falls under the jurisdiction of Acharya NG Ranga Agriculture University, Guntur. He served in this role for duration of 47 days, until 16.11.2012. Later, on 12.12.2012, the petitioner was appointed as a "Teaching Assistant (Contractual basis)" in the vacant position of Assistant Professor at NTR College of Veterinary Science, Gannavaram. This college is a constituent college of the Veterinary University, the respondent in this case. The petitioner worked in this capacity for a period of 8 months and 12 days, until 26.07.2013, with a notional gap of two days.
3. On 27.07.2013, the petitioner was appointed permanently as an "Assistant Professor" in NTR College of Veterinary Science, Gannavaram. This appointment was made based on the petitioner's possession of a Master's degree along with the qualification of National Eligibility Test (NET), which is the minimum essential requirement for the post as per UGC Regulations 2010. In the same recruitment process, the Respondent University conditionally appointed over 150 Assistant Professors who did not meet the minimum essential qualification of the National Eligibility Test (NET). These appointments were done by relaxing the said requirement, however, the university failed to obtain necessary approval for such relaxation from the University Grants Commission (for short „UGC‟). This approval is essential as per the F.1-1/2003 (PS) Meeting dated 09.02.2004.
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4. According to the AP Subordinate Service Rules 1996, appointments made with the relaxation of essential qualifications fall under Rule 10, which categorizes them as temporary appointments. As a result, individuals appointed under this rule are not considered to have entered into service. However, as per the UGC Regulations 2010 and 2018, a time-bound promotion channel is provided for teachers who have entered into service by complying with statutory norms. These regulations allow for the counting of "past service," including both temporary and permanent positions. The only requirement is that the individual must possesses the minimum essential qualification at the time of their temporary or permanent appointment. Since the petitioner possessed the necessary qualifications while fulfilling the duties of the temporary posts, his past service as a "Research Associate"
in ANGRAU and as a "Teaching Assistant" in SVVU should be considered for promotion.
5. The petitioner has submitted multiple requests for promotion by including his past service, but the respondents rejected the request through Memo No. 3350/Ser.I/2016 dated 02.06.2021, citing vague, non-cogent, and illegitimate reasons. Furthermore, the respondents counted the services of candidates who were appointed without the minimum essential qualification of the National Eligibility Test (NET) from their dates of joining the post, even though such appointments are void ab initio as they are contrary to UGC norms. These appointments cannot be regularized as per Act 2 of 1994. As a result, the authorities counted the service of individuals who lack the essential qualification at the entry level, while denying the NV,J W.P.No.14878 of 2021 4 inclusion of the petitioner's services, who has rendered his entire service while possessing the full qualifications of a Master's degree with NET. This action by the respondents constitutes a violation of Article 14 of the Constitution of India, as they are treating unequal individuals equally. In light of these circumstances, the petitioner has filed this writ petition.
6. Respondent No.2 - Registrar of Sri Venkateswara Vetarinary University, Tirupati filed counter affidavit stating that the Government of Andhra Pradesh has implemented UGC Regulations on Minimum Time Scale Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 (for short „UGC Regulations‟) vide G.O.Ms.No.14 HE (UE.II) Dept. dated 20.10.2010. In the said G.O. it has been envisaged as follows:
"The relaxation given by the UGC Regulation for universities, in respect of subjects here the NET/SLET is not conducted and non availability of sufficient number of NET/SLET qualified candidates may be sparingly allowed for rare subjects. However, in case of college teachers such relaxation shall not be permitted as there are no rare subjects in colleges".
7. It is stated that the University had obtained prior approval from the Government through G.O.Ms.No.68, AHDD&F (AH.II) Dept, Dt.26.10.2010 for relaxation of the National Eligibility Test (NET) qualification only when a sufficient number of candidates who had passed the NET were not available in a specific subject. Therefore, the relaxation granted regarding the NET NV,J W.P.No.14878 of 2021 5 qualification was in accordance with the UGC Regulations and had received prior approval from the Government of Andhra Pradesh.
8. According to the counter-affidavit, the petitioner had worked as a Research Associate (on a contract basis) at Dr.K.L.Rao, KVK, Garikapadu, receiving a remuneration of Rs. 23,000 + HRA, from 01.10.2012 to 16.11.2012. Subsequently, the petitioner worked as a Contract Teaching Faculty at SVVU, Tirupati, earning an honorarium of Rs. 23,000/- per month, from 12.12.2012 to 26.07.2013. The UGC has established specific conditions for counting past service for the purpose of awarding promotions under the Career Advancement Scheme (CAS). However, the petitioner has not fulfilled these conditions as stipulated by the UGC. As a result, the request for promotion cannot be considered. The counter-affidavit argues that the petitioner's past experience as a Research Associate and Contract Teaching Faculty does not qualify as service for consideration under CAS, as the selection process prescribed by the UGC was not followed in these appointments. Therefore, seniority is not connected with CAS promotions, and the petitioner is deemed ineligible for promotion and requested to dismiss the writ petition.
9. The petitioner, appearing as a party in person would submit that, the service rendered by him from the date of his joining as Research Associate in the year 2012 must be computed for the purpose of determination of eligibility service to grant benefits under the UGC Career Advancement Scheme and denial is arbitrary. He argues that receiving a fixed honorarium NV,J W.P.No.14878 of 2021 6 does not necessarily indicate full-time or part-time experience, and receiving emoluments should not be considered a substitute for experience. Therefore, rejecting his experience based on the payment of honorarium is not a valid criterion. Additionally, he contends that having received lower emoluments while working in an equivalent post should not be a reason to disregard his past service.
10. Furthermore, he argues that the service he provided starting from 2012 should be included in the calculation of eligible service under the CAS. According to the CAS guidelines, ad hoc or temporary service exceeding one year should be taken into account as eligible service, and the petitioner's service since 2012 falls within this category. Therefore, he asserts that denying him the benefits of CAS under the UGC Career Advancement Scheme is both erroneous and represents an arbitrary exercise of power and authority.
11. Per contra, learned Standing Counsel would submit that, for the respondent - University would submit that petitioner has not fulfilled the requirements of UGC guidelines and therefore he is not entitled to computation of service rendered by him from 2012. According to learned Standing Counsel, the past service claimed by the petitioner i.e. as Research Associate from 01.10.2012 to 16.11.2012 and as Contract Teaching Faculty from 12.12.2012 to 26.07.2013 was not in conformity with the criteria stipulated by UGC for the purpose of counting of past service. Learned Standing Counsel further submits that, eligibility service can be computed NV,J W.P.No.14878 of 2021 7 only from the date of regular appointment and seniority is no way connected to CAS promotions, thereby the petitioner is not entitled to count that service for eligibility for CAS and requested to dismiss the writ petition.
12. Heard the submissions made by the petitioner/party-in-person, the learned Standing Counsel for the University and learned Government Pleader for Higher Education and perused the material filed before the Court.
13. The petitioner had rendered service initially as Research Associate and later as Teaching Assistant on contract basis. Petitioner claims that by counting the service in the scale pay of Assistant Professor, he is eligible for present and future promotions to higher cadres. After completion of 47 days as Research Associate and 8 months 12 days as Teaching Assistant, the petitioner made an application (undated) for upgradation under CAS to the respondents. However, his application was not considered. Aggrieved by the same, this writ petition is filed.
14. The facts of the case reveal that the petitioner was initially appointed Research Associate from 01.10.2012 to 16.11.2012, later as Contract Teaching Faculty from 12.12.2012 to 26.07.2013 and as Assistant Professor from 27.07.2023 to till date, through a proper selection committee.
15. The petitioner's eligibility for the post of Assistant Professor, as per Rule 12(3) of the Andhra Pradesh State and Subordinate Service Rules, 1996, is unquestionable due to the undisputed possession of the required NV,J W.P.No.14878 of 2021 8 NET qualification. More so, there is no dispute concerning the petitioner's successful acquisition of this qualification.
16. For better appreciation of the case, Rule 10(f) of the UGC Regulations is extracted hereunder:
"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 duly 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.
17. On perusal of the above rule, it is clear that for counting of past services for direct recruitment and promotion under Career Advancement Scheme, the previous appointment of the individual should not be as a guest lecturer or ad hoc or his/her appointment shall not be made in a leave vacancy. However, Rule 10(f)(ii) specified that the ad-hoc or temporary service of more than one year duration can be counted, provided that the incumbent was appointed on the recommendation of duly constituted Selection Committee.
18. In the present facts, the petitioner's previous appointment was not as a guest lecturer or in a leave vacancy; rather, he was selected as a Research Associate on a contract basis by the selection committee at Krishi Vigyan Kendra. Subsequently, the petitioner served as a contract teaching faculty in the capacity of an Assistant Professor on a clear vacant post. Consequently, it can be asserted that the petitioner is eligible for counting of his past NV,J W.P.No.14878 of 2021 9 services for both direct recruitment and promotion under CAS, in accordance with Rule 10 of the UGC Regulations.
19. In Osmania University Teachers Association vs Union of India1 the Division Bench of this Court held that Universities are bound to follow the UGC Regulations while undertaking recruitment and promotions and the State or its instrumentalities cannot frame any parallel regulations. Further reliance was also placed on the common judgment of the Division Bench of this Court in Duda Padmaja Usha Rani and Meesla Pavani Vs. The State of Andhra Pradesh2, held that a combined reading of UGC Regulations and Rule 12 (3) (a) of AP Subordinate Service Rules, 1996 entail that a candidate can be considered eligible for the post of Assistant Professor only if he/she possesses the qualification of National Eligibility Test as on the date of issue of notification by recruiting authority .
20. University Grants Commission introduced periodical financial upgradation/elevation to teaching faculty as an incentive and to remove stagnation. UGC notified guidelines for consideration of claims to grant such upgradation/elevation. The guidelines are prescribed to compute past service for eligibility. Guidelines only seek to deny past service if the person was a guest lecturer or was appointed on ad-hoc basis or on a leave vacancy of less than one year. It is not in dispute that, even by the time the petitioner was initially appointed as Research Associate, and later as 1 (2002 4 ALT 682) 2 W.A. Nos. 581 and 583 of 2022 NV,J W.P.No.14878 of 2021 10 Teaching Assistant, his services were utilized as regular lecturer. He rendered service for more than an year. He was selected by the constituted selection committee through either an internal or external selection process. He was not appointed as a guest lecturer. Even while appointing the petitioner as Research Associate/Teaching Assistant, the Selection Committee assessed his eligibility and on finding him eligible in all respects only he was appointed to the said posts. By the time petitioner was appointed in regular post as Assistant Professor, since he fulfilled the qualifications and eligibility. Thus, all the conditions of Rule 10(f) of the UGC Guidelines are fulfilled by the petitioner.
21. The UGC Guidelines enable computation of the ad-hoc service rendered for the purpose of acquiring the eligibility for upgradation to the next scale/post. "Whether the service rendered by the petitioner on ad-hoc basis can be counted as eligible service is in issue". Thus, it is not a case of assessment of suitability and professional competence of the candidate vis- à-vis his academic qualifications, but of computation of the ad hoc service towards the eligible service to grant benefits of CAS as per UGC Guidelines. It is also relevant to note that his eligibility to teach in relevant discipline was assessed before he was selected on ad hoc basis and his suitability to hold the post of Assistant Professor on regular basis was also assessed before he was selected and appointed.
22. The possession of required academic qualifications and ability to teach in the concerned discipline, is not doubted. The petitioner has rendered NV,J W.P.No.14878 of 2021 11 considerable service while working on ad hoc basis/contract basis. It is also appropriate to note that CAS is introduced to grant periodical upgradation as an incentive to teaching faculty after rendering a particular period of service and possessing required academic qualification. UGC recognized the fact of large number of persons in teaching faculty get initially appointed on temporary/ad hoc basis before they were regularly appointed. Thus, clauses in the scheme, as noted above, are tuned in such a way to enable such Lecturers to compute the ad hoc service for the purpose of financial upgradation/elevation. The fact that scheme recognizes computation of ad hoc service/service rendered even in private institutions would also goes to show that UGC was conscious of existence of such kind of appointments and gives weight to such service to grant periodical upgradation. It is in recognition of fact that such long continuation on ad hoc basis and/or service in private institutions would also amount to stagnation. It is an incentive on rendering satisfactory service and therefore scope of computation of service is expanded. This scheme is a beneficial scheme and intend to address the grievance of teaching faculty on stagnation and to provide incentive of upgradation duly taking note of ad hoc service and/or service rendered in private institutions. It being a beneficial scheme, the clauses of CAS Guidelines must receive liberal construction.
23. On cumulative reading of the clauses incorporated in the UGC Guidelines, the object of the scheme and having regard to the educational qualifications possessed and ad-hoc service rendered by the petitioner, assessment of his eligibility by duly constituted Selection Committee at the NV,J W.P.No.14878 of 2021 12 institution level when he was appointed on ad-hoc basis and by the University when he were regularly appointed. Hence, this Court is of the opinion that petitioner is entitled to seek computation of the ad hoc service rendered by him to make him eligible for extending the benefits of CAS. Contrary action of the University is illegal and amounts to arbitrary exercise of power. In the facts of this case, such action is also discriminatory and in violation of Article 14 of the Constitution of India.
24. Furthermore, the petitioner was appointed on a fixed honoraria/remuneration basis, after approval from the competent authorities. The appointment, whether temporary or contractual, cannot be considered as an appointment outside the rules or contrary to the law. Therefore, the petitioner should not be disqualified from having the experience gained during that period counted under CAS. It is essential to understand that the payment of fixed honoraria or remuneration does not necessarily determine whether the experience gained was on a full-time or part-time basis and such payment of honoraria it is not a criterion of rejection of experience. Likewise, mode of receiving emoluments cannot be considered a replacement for actual experience. Merely because a teacher has received lower emoluments though working in an equivalent post, it cannot be a ground to reject his/her candidature.
25. Further, in the counter affidavit or the Memo No. 3350/Ser.I/2016 dated 02.06.2021, The respondents have failed to provide any cogent reasons for their decision for exclusion of the petitioner's past service.
NV,J W.P.No.14878 of 2021 13 Instead of providing a proper explanation or addressing the petitioner's contentions, they have merely denied them and cited rules without presenting any substantive arguments. Merely rejecting the request of the petitioner is nothing but an illegal and arbitrary act on the part of the respondents.
26. The recording of reasons is necessary. It is well known that "conclusions" and "reasons" are two different things and reasons must show mental exercise of authorities in arriving at a particular conclusion.
27. The Apex Court of India in the case of "Raj Kishore Jha v. State of Bihar3", has held that reasons are the heartbeat of every conclusion and without the same, it becomes lifeless.
28. The Apex Court also in "Competition Commission of India v. Steel Authority of India Ltd.4" said:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. By practice adopted in all courts and by virtue of judge- made law, the concept of reasoned judgment has become an indispensable part of basic rule of law and in fact, is a mandatory requirement of the procedural law. Clarity of thoughts leads to clarity of vision and therefore, proper reasoning is foundation of a just and fair decision
29. On 08.10.2018, proceedings were issued promoting the other Assistant Professors to the next higher grade of Assistant Professor (Stage-II) under the SVVU Teachers (Career Advancement Scheme) Regulations, 2010. However, the petitioner was overlooked in this promotion despite being 3 (2003) 11 SCC 519 4 JT 2010 (10) SC 26 NV,J W.P.No.14878 of 2021 14 senior to those Assistant Professors who were selected, which is fatal to the case of the petitioner.
30. For the foregoing reasons, the writ petition is allowed. The respondent University shall assess the suitability of the petitioner to promote him as Associate Professor (Stage-II) by duly taking note of ad hoc service rendered by him prior to his regular appointment and if found suitable shall grant all consequential benefits including arrears of amounts due and payable. The entire exercise shall be completed within two months from the date of receipt of copy of this order. No costs.
31. Consequently, miscellaneous applications pending if any, shall stand closed.
____________________________________________ JUSTICE VENKATESWARLU NIMMAGADDA Date:13.07.2023 SP