Madras High Court
The Director vs Dr.B.Raja on 10 June, 2014
Author: M.Sathyanarayanan
Bench: N.Paul Vasanthakumar, M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 10.06.2014
CORAM
THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR
AND
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
W.A.Nos.2187 and 2188 of 2013
and M.P.Nos.1, 1 of 2013
1.The Director,
Indian Institute of Information Technology,
Design & Manufacturing (IIITD & M),
Kancheepuram, Melakottaiyur Village,
Vandalur (via), Chennai-600 127.
2.Board of Governors,
Indian Institute of Information Technology,
Design & Manufacturing (IIITD & M),
Kancheepuram .. Appellants 1 & 2 in both W.As.
3.The Registrar,
Indian Institute of Information Technology,
Design & Manufacturing (IIITD & M),
Kancheepuram, Melakottaiyur Village,
Vandalur (via), Chennai-600 127.. Appellant No.3 in W.A.No.2187/2013
Vs.
1.Dr.B.Raja,
2.Dr.M.Sreekumar
3.Dr.Shahul Hamid Khan
4.Dr.B.Sivaselvan
5.Dr.Shalu
6.Dr.Naveen Kumar Vats
7.Dr.V.Masilamani
8.Dr.Tapas Sil
9.Dr.P.Damodharan
10.Dr.S.Vijayakumar
11.Dr.A.Arivazhagan .. Respondent 1 to 11
in both W.As.
12.Dr.Binsu J Kailath
13.Dr.K.Selvajothi .. Respondents 12 and 13 in both W.A.No.2187/2013
14.Union of India,
Represented by the Secretary,
Ministry of Human Resources
& Development,
Government of India, Shastri Bhavan,
New Delhi-110 001. .. Respondent in both W.As.
Prayer in both W.As. :- Writ Appeals filed under Clause 15 of the Letters Patent against the order dated 27.08.2013 made in W.P.Nos.28312/2012 and 23087/2012.
For Appellants : Mr.Vijayanarayan, Senior Counsel
in both W.As. for Mr.Karthik Mukundan
For Respondents : Mr.K.M.Vijayan, Senior Counsel
for M/s.K.M.Vijayan Associates
for R1 in both W.As.
Mr.K.Mohanamurali,
Standing Counsel for Union of India
in both W.As.
C O M M O N J U D G M E N T
M.SATHYANARAYANAN, J.
The respondents 2 to 4 in W.P.Nos.28312 and 23087/2012 are the appellants. The private respondents in these appeals/petitioners in the writ petitions made a challenge to the order dated 01.10.2012 with regard to Performance Assessment Process to facilitate the movement of eligible and qualified faculty members who have joined prior to 18.08.2009 as Assistant Professors to the post of Associate Professors and also praying for implementation of Career Advancement Programme to all of them in accordance with the proceedings of the first respondent dated 30.12.2009 and both the writ petitions came to be allowed, after contest, by a common order dated 27.08.2013 and challenging the same, the present writ appeals are filed.
2. Facts leading to the filing of these writ petitions have been narrated in detail in the impugned common order passed in the writ petitions and therefore, it is unnecessary to restate the same except to state few facts, in brief, necessary for the final disposal of these writ appeals:
2.1. The private respondents are working as Assistant Professors in the services of the Indian Institute of Information Technology, Design and Manufacturing (IIIT D&M), Kancheepuram. The 12th respondent herein/1st respondent in the writ petitions has issued proceedings bearing No.3-27/2009-TS.II dated 30.12.2009 stating that the Government of India has decided to implement a Career Advancement Scheme (CAS) for the faculty of the Indian School of Mines, Dhanbad and Indian Institutes of Information and Technology (IITs) consequent to the implementation of the revised pay structure notified by the said Ministry, vide order dated 18.08.2009 and the salient features of the implementation of the CAS are as follows:
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(i) An Assistant Professor possessing the degree of Ph.D in the relevant discipline and with regular service of 3 years at AGP of Rs.6000/- p.m. shall be eligible for moving to AGP of Rs.7000 p.m.
(ii) An Assistant Professor possessing the degree of Ph.D in the relevant discipline and with regular service of 3 years at AGP of Rs.8000/- p.m. shall be eligible for moving to AGP of Rs.9000/- p.m. and shall be re-designated as Associate Professor.
(iii) An Assistant Professor possessing the degree of Ph.D in the relevant discipline and with regular service of 3 years at AGP of Rs.8000/- p.m. shall be eligible for moving to AGP at Rs.9000/- p.m. and shall be re-designated as Associate Professor.
(iv) Associate Professor completing 4 years of regular service in the AGP of Rs.9000/- and possessing a Ph.D degree shall be eligible for appointment and shall be designated as Professor, subject to other conditions of academic performances as laid down by UGC and by the university, if any.
(v) Of the sanctioned posts of Professors, 20% shall be given AGP of Rs.12000/- after regular service of 6 years as Professor with AGP of Rs.10000/-.
3. In the case of existing incumbents, parity of the pay structure with the IITs partially takes care of the issue of Career Advancement Scheme. The Career Advancement Scheme for incumbent faculty of IIITs and ISM shall be as follows:
(i) The existing Asst. Professors in the pre-revised pay scale of Rs.12000-18300 will be placed in PB-3 with AGP of Rs.8000/- and pay in the Pay Band fixed as indicated in para 8(iv)(a) of MHRB Order dated 18th August, 2009.
(ii) As per the notification issued in 16th September 2009, such Asstt. Professors on completion of 3 years will move to PB-4 in the minimum of Rs.37400 with AGP of Rs.9500/- and will be designated as Associate Professors.
(iii) Such Associate Professors, as in service on 18.8.09 after completion of 4 years of regular service in the AGP of Rs.9500/- and possessing a Ph.D degree in the relevant discipline shall be eligible for appointment and designation as Professor subject to other conditions of academic performance as laid down by the UGC and the University, if any. As Professor, they will be given the Grade Pay of Rs.10500/- and the pay in the Pay Band fixed as per the normal pay fixation rules of giving one increment of 3% at the time of promotion.
(iv) Lastly, existing Associate Professors who are being placed in the Revised Academic Grade Pay of Rs.9500/- may be eligible to move after 4 years in this AGP to AGP of Rs.10,500/- with pay in the Pay Band fixed as per normal pay fixation rules of giving one increment of 3%. Eligibility of Professors for AGP of Rs.12,000/- will be the same as laid down in para 2(v) of this order.
4. There will be no further fresh recruitment at the level of Associate Professor with Grade Pay of Rs.9500/- or at the level of Professor with entry pay of Rs.48,000/- along with Grade Pay of Rs.10,500/-. Fresh recruitments will be made in the grades approved for National Institutes of Technology (NIT). 2.2. The grievance expressed by the private respondents/writ petitioners is that they joined as Assistant Professors in the above said institution before 18.08.2009 and in terms of Para 3(ii) of the letter of the 12th respondent herein/1st respondent in the writ petitions dated 30.12.2009, on completion of 3 years as Assistant Professors, they have to be moved to Pay Band-4 in the minimum pay of Rs.37400/- with AGP of Rs.9500/- and have to be designated as Associate Professors and for the reasons best known to the appellants 1 and 2, have not chosen to implement the said order and hence, they filed W.P.No.23087/2012 praying for implementation of para 3(ii) of the proceedings of the 12th/14th respondent herein dated 30.12.2009 and notice was ordered in the writ petition and pendency of the writ petition, the impugned office memorandum dated 01.10.2012 came to be issued stating that the Performance Assessment Process shall be conducted for the implement of CAS and directed them to submit their willingness on or before 30.10.2012.
2.3. The private respondents herein/writ petitioners, challenged the impugned office memorandum dated 01.10.2012 stating among other things that the impugned office memorandum is contra to the proceedings of the 12th/14th respondent dated 30.12.2009, which is the controlling/administering authority and as per the said proceedings, there cannot be any performance evaluation and once they complete 3 years of service as Assistant Professors, they have to be designated as Associate Professors in Pay Band -4 in the minimum pay of Rs.37400/- with Additional Grade Pay of Rs.9500/-. It is further contended that every other Indian Institute of Information Technologies have implemented the proceedings of the 12th/14th respondent dated 30.12.2009 in letter and spirit and the appellants alone had taken a contra stand and the same is in violation of the above said proceedings of the 12th respondent and hence, prays for quashment of the impugned office memorandum dated 01.10.2012 and implementation of the proceedings dated 30.12.2009 on the file of the 12th respondent.
2.4. The respondents 2 and 3/appellants 1 and 2 had filed their counter stating among other things that the institute is an Autonomous Society and the highest policy making body in respect of its functioning is the Board of Governors. It is contended by the appellants 1 and 2/respondents 2 and 3 in the writ petitions that the Career Advancement Scheme provides an avenue through which qualified employee climbs to the higher rank of the career ladder and it cannot be treated as a mere formality or automatic as the purpose of the scheme is for development of merit and it cannot be considered as purely eligibility based promotions. It is further stated by the respondents 2 and 3 in the writ petitions that as per the proceedings of the 12th/14th respondent dated 18.08.2009, revision of pay of teaching and other staff of centrally funded technical institutions, following the pay revision granted to Central Government employees on the recommendations of the 6th Pay Commission, has been done and as per Clause 2(e), all promotions will be based on performance evaluation, subject to fulfillment of other conditions laid down by the Ministry of Human Resources Development letter No.1-32/2006-U.II/U.I(i) dated 31.12.2008 and in accordance with the said proceedings, performance evaluation has been contemplated. It is further contended that in respect of National Institutes of Technology also 12th/14th respondent has issued proceedings dated 14.03.2012 stating among other things that CAS will not be treated as mere formality, as the purpose of the scheme was for development of merit and not eligibility based promotions and it was also discussed in the Board of Governors' meeting of the institute and after much deliberations, the Board decided that keeping in view its objectives to be a centre of excellence and that its faculty members are expected to have higher academic credentials, carry out quality research etc., decided to carry out performance assessment process to facilitate the movement of eligible and qualified faculty members who had joined prior to 18.08.2009 as Assistant Professors and who had completed 3 years of experience and the said decision was communicated to all concerned by official memorandum dated 01.10.2012. It is further stated that the filed of study in the Institute is a highly specialized one and to achieve its objective to be a premier institution, imparting qualitative education to its students, it is incumbent that the faculty satisfy a higher degree of merit and standards and therefore, it cannot be faulted with.
2.5. The learned Judge, after taking into consideration the rival submissions and materials placed before it, has considered the maintainability of the writ petitions against the Institute/IIIT and held that the writ petitions are maintainable. On merits of the case, the learned Judge found that the Career Advancement Scheme (CAS) is introduced by means of an order of the Central Government/12th respondent and if any modification is to be made to the said order, it could be done only by the author of the Scheme, namely, Central Government and the respondent-IIIT, being an implementing authority, has no power to modify the said Scheme and the learned Judge by citing the said reason held that the impugned office memorandum is unsustainable and set aside the same and taking note of the submission made on behalf of the respondents/appellants herein has observed that if there are any such anomalies, it is for the appropriate Committee to make recommendation and it is for the Central Government to decide and until the Central Government modifies or clarifies the CAS any further, as of now, IIIT is bound to implement the CAS, as per the proceedings dated 30.12.2009 and accordingly, allowed both the writ petitions and feeling aggrieved, the respondent 2 and 3 in the writ petitions have filed these writ appeals.
3. Mr.Vijayanarayan, learned Senior Counsel appearing for the appellants has invited the attention of this Court to the proceedings of the 12th/14th respondent in F.No.23-1/2008-TS.II dated 18.08.2009 and would submit that it is made applicable only to centrally funded technical institutions, which include IIIT also and under the said proceedings, revision of pay to teaching and other staffs of those institutions has been granted following the pay revision granted to the Central Government employees on the recommendations of the 6th Pay Commission and as per Clause 2(iii), all promotions will be based on performance evaluation, subject to fulfillment of other conditions laid down by the 12th respondent in its letter dated 31.12.2008. It is further submitted by the learned Senior Counsel appearing for the appellants that the Assistant Professors possessing Ph.D in the relevant discipline and with regular service of 3 years at AGP of Rs.6,000/- p.m. shall be eligible for moving to AGP of Rs.7,000/- p.m. and the private respondents apart from satisfying the eligibility conditions, have to undergo performance evaluation process as they are moving to the post of Associate Professors and since IIIT is one of the academies of national importance, which impart quality education to students, Associate Professors, who are teaching students, are expected to have high degree of achievement and their fulfillment to move to the post of Associate Professors can be done only by means of performance evaluation and that the Career Advancement to the post of Assistant Professor to the post of Associate Professor is not automatic.
4. The learned Senior Counsel appearing for the appellants has drawn the attention of this Court to para 29 of the impugned common order passed in the writ petitions and submitted that the learned Judge has observed that until the Central Government modifies or clarifies the Career Advancement Scheme and as per the proceedings dated 30.12.2009, the IIIT is bound to implement the Career Advancement Scheme and in the light of the said observation, the appellants herein sought clarification with regard to Career Advancement Scheme, vide its letter dated 01.11.2013 and in response to the same, the 12th/14th respondent sent a reply dated 26.11.2013 clarifying that CAS should not be treated as a mere formality stating that there is no provision for automatic movement or upgradation to the higher grade merely on completion of certain years of service and the upgradation is to be done only on the recommendation of a duly constituted selection committee.
5. The learned Senior Counsel appearing for the appellants has also invited the attention of this Court to the notification dated 30.06.2010 with regard to University Grants Commission (UGC) Regulations on Minimum Qualifications For Appointment Of Teachers And Other Academic Staff in Universities and Colleges and Measures For The Maintenance of Standards in Higher Education, 2010, wherein the UGC, in exercise of the powers conferred under clause 26(e) and (g) of UGC Act, 1956 in pursuance of the Ministry of Human Resource Development dated 23.10.2008 read with Ministry of Finance (Department of Expenditure) O.M.No.F.1-1/2008-IC dated 30.08.2008 and in terms of MHRD Notification dated 31.12.2008 and in supersession of the University Grants Commission (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) Regulations, 2000 issued by University Grants Commission Regulation dated 04.04.2000, has framed the regulations and as per Clause 1.3 of the said regulations, it shall come into force with immediate effect subject to the proviso that any candidate becomes eligible for promotion under CAS in terms of these Regulations on or after 31.12.2008 and the promotion of such a candidate shall be governed by the provisions of the said Regulations. Clause 6.0.0 of the said Regulations speaks about selection procedures and it is relevant to extract the following sub-clauses:
6.0.1. The overall selection procedure shall incorporate transparent, objective and credible methodology of analysis of the merits and credentials of the applicants based on weightages given to the performance of the candidate in different relevant dimensions and his/her performance on a scoring system proforma, based on the Academic Performance Indicators (API) as provided in this Regulations in Tables I to IX of Appendix III.
In order to make the system more credible, universities may assess the ability for teaching and/or research aptitude through a seminar or lecture in a class room situation or discussion on the capacity to use latest technology in teaching and research at the interview stage. These procedures can be followed or both direct recruitment and CAS promotions wherever selection committees are prescribed in these Regulations.
6.0.2. The Universities shall adopt these Regulations for selection committees and selection procedures through their respective statutory bodies incorporating the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS) at the institutional level for University Departments and their Constituent colleges/affiliated colleges (Government/Government-aided/Autonomous/Private Colleges) to be followed transparently in all the selection processes. An indicative PBAS template proforma for direct recruitment and for Career Advancement Scheme (CAS) based on API based PBAS shall also be sent separately by the UGC to the universities. The universities may adopt the template proforma or may devise their own self-assessment cum performance appraisal forms for teachers in strict adherence to the API criteria based PBAS prescribed in these regulations.
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6.0.5 (i) Besides the indexed publications documented by various discipline-specific databases, the University concerned shall draw through committee(s) of subject experts and ISBN/ISSN experts : (a) a comprehensive list of National/Regional level journals of quality in the concerned subjects (s); and (b) a comprehensive list of Indian language journals/periodicals/official publication volumes of language bodies and upload them on the University website which are to be updated periodically.
(ii) In respect of Indian language publications, equivalence in quality shall be prescribed for universities located in a State by a Co-ordination Committee of experts to be constituted by the Chancellor of the concerned State University.
(iii) At the time of assessing the quality of publications of the candidates during their appointments/promotions, the selection committees shall have to be provided with the above two lists which would be considered by the selections committees along with the other discipline-specific databases.
(iv) The UGC shall constitute a Committee as soon as practicable, in so far as acceptability of the (list of) Indian language journals so developed by Universities / States, to arrive at equivalence in quality of such publications with otherwise accepted and recognized journals.
6.0.6. The process of selection of Associate Professor should involve inviting the bio-data with the duly filled Performance Based Appraisal System (PBAS) proforma developed by the respective universities based on the API criteria provided in this Regulation and template separately provided. Without prejudice, to the requirements provided for selection of Associate Professor under this Regulation, the prescription of research publications for promotion from the post of Assistant Professor to Associate Professor in colleges shall be as follows:
(a) For those who possess a Ph.D. Degree, a minimum of one publication made during the period of service as Assistant Professor;
(b) for those with a M.Phil Degree, a minimum of two publications made during the period of service as Assistant Professor; and
(c) for those without Ph.D. Or M.Phil. Degree, at least three publications during the period of service as Assistant Professor.
Provided that in sol far as teachers in Universities are concerned, three publications shall be required to be submitted for all the three categories mentioned above for consideration of promotion from Assistant Professor to Associate Professor.
Provided further that such publications shall be provided to the subject experts for assessment before the interview and the evaluation score of the publications provided by the experts shall be factored into the weightage scores while finalizing the outcome of selection by the selection committee.
6. Attention of this Court was also drawn to Appendix-III, Table-II(B) which provides for minimum point norms for academic performance indicators as provided in Table I and weightages for expert assessment to be applied for the promotion of teachers in colleges (UG and PG) under Career Development Scheme (CAS) and it is relevant to extract minimum point norms in respect of Assistant Professors to Associate Professors/equivalent cadre:
Assistant Professor/equivalent cadres Stage 1 to Stage 2 Assistant Professor/ equivalent cadres: Stage 2 to Stage 3 Assistant Professor (Stage 3) to Associate Professor/equivalent cadre (Stage 4) Associate Professor to Professor Promotion in Colleges (Stage 5( as per assigned posts I Teaching-learning, Evaluation Related Activities (Category-I) 75/year 75/year 75/year 75/year II Co-curricular, Extension and Profession related activities (category-II) 15/year 15/year 15/year 15/year III Minimum total average annual score under Categories I and II 100/year 100/year 100/year 20/year IV Research and Academic Contribution (Category III) 5 year (20/ assessment period) 10 year (50/ assessment period) 15 year (45/ assessment period) 20 year (60/ assessment period) Expert Assessment System Screening Committee Selection Committee Selection Committee Selection Committee V Percentage Distribution of Weightage Points in the Expert Assessment (Total weightage = 100 Minimum required for promotion is 50) No separate points. Screening Committee to verify API scores No separate points. Screening Committee to verify API scores 20%- Contribution to Research. 60%-Assessment of domain knowledge and teaching practices. 20%-Interview performance 30%-Contribution to Research. 50%-Assessment of domain knowledge and teaching practices. 20% -Interview performance Explanatory note for Tables II(a) and II(b) reads as follows:
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6.Candidates should offer themselves for assessment for promotion, if they fulfill the minimum API scores indicated in Tables I and II, by submitting an application and the required proforma. They can do so three months before the due date if they consider themselves eligible. Candidates who do not consider themselves eligible, can also apply at a later date.
7. If however, on final assessment, candidates do not either fulfill the minimum criteria under Rows III and IV of Tables II(A) and II(B) or obtain less than 50% in the expert assessment, they will be reassessed only after a minimum period of one year.
8. (a) if a candidate applies for promotion on completion of the minimum eligibility period and is successful, the date of promotion will be deemed to be the minimum period of eligibility.
(b) If however, the candidate finds that she/he fulfills the eligibility conditions at a late date and applies on that date and is successful, her/his promotion will be deemed to be from that date of application.
(c) If the candidate does not succeed in the first assessment, but succeeds in an eventual assessment, her/his promotion will be deemed to be from the later date.
7. The learned Senior Counsel appearing for the appellants has also drawn the attention of this Court to the MHRD letter dated 30.12.2009 and submitted that as per Clause 2(iii), an Assistant Professor completing 3 years at AGP of Rs.8,000/- p.m. shall be eligible for moving to AGP at Rs.9,000/- p.m. subject to other conditions, as may be prescribed by UGC to move to Pay Band-4 in the minimum of Rs.37,400/- with AGP of Rs.9,500/- and to be designated as Assistant Professors and submitted that in the light of the above cited UGC regulations, Career Advancement to the post of Associate Professor is not automatic and is subject to performance evaluation and the said aspect has been completely overlooked by the learned Judge while allowing the writ petitions. Alternatively, it is submitted by the learned Senior Counsel appearing for the appellants that subsequent to the disposal of the writ petitions, the first appellant sought clarification from the 12th/14th respondent on 01.11.2013 and the 12th/14th respondent in his clarification letter dated 26.11.2013 has clearly stated that there is no provision for automatic movement or upgradation to higher grade merely on completion of certain years of service and it has to be done only on the recommendation of a duly constituted selection committee and therefore, the impugned office memorandum is perfectly sustainable in law and hence, prays for setting aside the impugned order. The learned Senior Counsel for the appellants, in support of his submissions, placed reliance upon the following judgments:
(i) S.S. Grewal v. State of Punjab and Others [1993 Supp (3) SCC 234]
(ii) S.B.Bhattacharjee v. S.D.Majumdar and Others [(2007) 10 SCC 513]
(iii) Union of India v. K.S.Krishnaswamy [2005 (2) CTC 661]
8. Per contra, Mr.K.M.Vijayan, learned Senior Counsel appearing for the private respondents would vehemently contend that the point now urged by the learned Senior Counsel appearing for the appellants with regard to UGC regulations dated 30.06.2010 have not at all been put forward before the learned Single Judge and the impugned order have to be tested on the basis of materials placed at the time of disposal of the writ petitions. It is further contended by the learned Senior Counsel appearing for the private respondents that the Career Advancement Scheme to the post of Associate Professor from the post of Assistant Professor is only re-designation and cannot be construed as promotion and the instructions issued by the 12th respondent dated 30.12.2009 makes it very clear that once the Assistant Professor fulfills the eligibility criteria, have to be designated as Associate Professor and performance evaluation cannot be done. Insofar as Career Advancement Scheme in National Institute of Technology, it is submitted by the learned Senior Counsel appearing for the private respondents that it is altogether a separate institution and the procedure adopted cannot be ipso facto applicable to the Career Advancement Scheme in respect of IIITs and the learned Judge has correctly interpreted the proceedings of the 12th/14th respondent dated 30.12.2009 and granted the relief and in the absence of any infirmity, the impugned common order cannot be interfered with and hence, prays for dismissal of these writ appeals. The learned Senior Counsel appearing for the respondents relied on the decision of the Hon'ble Supreme Court in D.G.Indian Council for Agricultural Research and Others v. D.Sundara Raju made in Civil Appeal No.2714/2005.
9. This Court, after hearing the rival submissions, reserved orders on 22.04.2014 and thereafter, the learned Senior Counsel appearing for the private respondents made a request for reopening the cases for further arguments and accordingly, the cases were put on board on 03.06.2014 and on that day, the learned counsel on record appearing for the private respondents sought further time and it was listed on 05.06.2014 and on that day, the learned Senior Counsel appearing for the private respondents made further submissions.
10. The learned Senior Counsel appearing for the private respondents apart from reiterating the submissions made would submit that the clarification sought by Mr.Gnanamoorthy to the Director (TS), Department of Higher Education, Ministry of Human Resources Development, New Delhi-1, is nothing but a private e-mail communication and in response to the same, Mr.Alok Mishra, Director (IITS) sent a communicated dated 26.11.2013 in the form of a clarification and since the said communications are between two private individuals, it cannot be taken cognizance for the purpose of deciding these appeals. The learned Senior Counsel appearing for the private respondents has invited the attention of this Court to the UGC Notification on Revision of Pay Scales, Minimum Qualifications for Appointments of Teachers in Universities, Colleges and Other measures for the Maintenance of Standards, 1998 and would submit that there is no post in the Universities and colleges as Assistant Professors and Associate Professors and such posts came into being only after the recommendation of the VI Central Pay Commission and whereas the private respondents got employed even prior to the V Pay Commission recommendation and therefore, the rules prevalent at that point of time only have application to their case.
11. The learned Senior Counsel appearing for the private respondents has drawn the attention of this Court to para 20.7.3. of the Handbook for Personnel Officers, 2013 issued by the Institute of Secretariat Training and Management (Department of Personnel and Training), Ministry of Personnel, Public Grievances and Pensions, Government of India and would submit that as per the said guidelines, no interviews should be held unless it has been specifically provided for in the recruitment rules for the post/service and whenever promotions are to be made by the method of selection by the Departmental Promotion Committee and the administrative Ministry desires that an interview should form part of the selection process, necessary provision should be made in the recruitment rules and as per the letter of the 12th/14th respondent dated 18.08.2009, no performance evaluation is prescribed for the post of Associate Professors and it was taken into consideration by the learned Judge while ordering the writ petition.
12. Per contra, Mr.Vijayanarayan, learned Senior Counsel appearing for the appellants would submit that the e-mail emanated from Mr.Gnanamurthy is an official e-mail of Indian Institute of Information Technology and it was addressed to the Director (TS), Department of Higher Education, Ministry of Human Resources Development, New Delhi-100 001 and his predecessor only has issued the communication dated 18.08.2009 which is relied on by the private respondents and in the clarification dated 26.11.2013, it has been made clear that the Career Advance Scheme should not be treated as mere formality and there is no provision for automatic movement or upgradation to the higher grade merely on completion of certain years of service and any upgradation is to be done only on the recommendation of a duly constituted selection committee and since the private respondents aspire to become Associate Professors, performance evaluation is absolutely necessary as they have to take classes for students, whose future career are in their hands. The learned Senior Counsel would further submit that during the pendency of the writ petition the 12th/14th respondent did not file his counter, however, during the pendency of this writ appeal, has filed its counter wherein in para 3 it has been made clear that after fulfilling the eligibility criteria, the promotion under Career Advancement Scheme is subjected to other conditions of academic performance laid down by the UGC and University/Institute, if any and all Centrally Funded Institutions including IIITD&M, Kancheepuram (1st appellant herein) are bound to implement the order issued by the Central Government from time to time and it is further averred that the Career Advancement Scheme is not a formality and it is not an automatic promotion and after devising suitable criteria, the Career Advancement Scheme has to be implemented by the institute. It is the further submission of the learned Senior Counsel appearing for the appellants that in the light of the stand taken by the Ministry of Human Resources Development, Government of India, New Delhi and coupled with the liberty granted in the impugned order passed in the writ petition, the clarification dated 26.11.2013 was obtained from the Ministry of Human Resource Development and therefore, the impugned order is to be set aside and the writ appeal is to be allowed.
13. This Court paid its best attention to the submissions made by the learned Senior Counsel appearing for the appellants and the learned Senior Counsel appearing for the private respondents and also perused the materials available in the form of typed set of documents and considered the judgments relied on by the learned Senior Counsel appearing for the appellants.
14. University Grants Commission, in terms of powers conferred under Sections 26(1)(e) and (g) of UGC Act, 1956, has framed regulations dated 30.06.2010 on Minimum Qualifications for Appointment of Teachers and Another Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 and indicated that it shall come into force with immediate effect subject to proviso that any candidate becomes eligible for promotion under Career Advancement Scheme in terms of the said Regulations on or after 31.12.2008 and the promotion of such a candidate shall be governed by the provisions of these Regulations. Clause 6.0.0. speaks about selection procedures and Clause 6.0.1 of the said regulations makes it very clear that selection procedure can be followed for both direct recruitment and CAS promotions wherever selection committees are prescribed in these Regulations. Clause 6.0.6. also speaks about process of selection of Associate Professor. Appendix-III Table-II(B) speaks about minimum point norms for academic performance indicators as provided in Table I and weightages for expert assessment to be applied for the promotion of teachers in colleges (UG and PG) under career advancement scheme (CAS) and from the post of Assistant Professor to Associate Professor are equivalent cadre and expert assessment system shall be done by the selection committee.
15. Proceedings of the 12th/14th respondent in F.No.23-1/2008-T.S.II dated 18.08.2009 dealt with the subject of revision of pay of teaching and other staffs in Centrally Funded Technical Institutions, following the pay revision of the Central Government employees on the recommendations of 6th Pay Commission and it is relevant to extract Clause 2 of the said proceedings:
2.For Other Centrally Funded Technical Institutions.
The pay structure and designations for all other Centrally Funded Technical Institutions will generally be the same as per the scheme of revision of pay of teachers etc in Universities, etc., as notified by the Ministry of HRD vide letter No.1-32/2006-U.II/U.I (i) dated 31st December 2008 and clarification issued thereon from time to time. However, in the case of National Institutes of Technology (NITs), Indian School of Mines University (ISMU), Indian Institutes of Information Technology (IIITs) and Schools of Planning & Architecture (SPAs), the following accelerated promotional benefits will be given while maintaining the UGC Pay structure and designations.
(a) Seven non-compounded advance increments shall be admissible at the entry level of recruitment as Assistant Professor to persons possessing the degree of Ph.D awarded in the relevant discipline.
(b) (i) An Assistant Professor possessing the degree of Ph.D in the relevant discipline and with regular service of 3 years at AGP of Rs.6000/- p.m. shall be eligible for moving to AGP of Rs.7000/- p.m.
(ii) An Assistant Professor possessing the degree of Ph.D in the relevant discipline and with regular service of 3 years' at AGP of Rs.7000/- p.m. shall be eligible for moving to AGP of Rs.8000 p.m.
(iii) An Assistant Professor possessing the degree of Ph.D in the relevant discipline and with regular service of 3 years at AGP of Rs.8000/- p.m. shall be eligible for moving to AGP of Rs.9000/- p.m. and redesignated as Associate Professor.
(c) Associate Professor completing 4 years of regular service in the AGP of Rs.9000/- and possessing a Ph.D degree in the relevant discipline shall be eligible to be appointed and designated as Professor, subject to other conditions of academic performance as laid down by the UGC and by the university, if any. No teacher other than those with a Ph.D shall be promoted, appointed or designated as Professor. The Pay Band for the post of Professors shall be Rs.37400 67000 with AGP of Rs.10000 p.m.
(d) Up to a minimum of 20% of the sanctioned post of Professors shall be placed in PB-4 in the AGP of Rs.12000/- p.m after regular service of 6 years as Professor in the AGP of Rs.10000 and the minimum pay in the Pay Band will be fixed at Rs.48000/- p.m. Other eligibility conditions will be as laid down by the UGC.
(e) All promotions will be based on performance evaluation and subject to fulfillment of other conditions laid down by MHRD letter No.1-32/2006-U.II/U.I(i) dated 31st December, 2008.
The said clause speaks about the Ministry of Human Resources Development letter dated 31.12.2008 and clarification issued from time to time and as per Clause 2(e) all promotions will be based on performance evaluation and subject to the fulfillment of other conditions laid down in the above cited letter dated 31.12.2008. UGC regulations dated 30.06.2010, which is having a statutory effect, makes it very clear that even for Career Advancement Scheme also, one has to undergo the selection progress.
16. It is very pertinent to point out at this juncture that after disposal of the writ petitions by a common order, which is impugned in these writ appeals, the first appellant sought clarification from the 12th/14th respondent on 01.11.2013 and the 12th/14th respondent has issued the clarification dated 26.11.2013, clarifying that there is no provision for automatic movement or upgradation to the higher grade merely on completion of certain years of service. The learned Judge, in para 29 of the order, has also opined that if there are any such anomalies, it is for the appropriate committee to make recommendation and it is for the Central Government to decide and until the Central Government modifies or clarifies the Career Advancement Scheme any further, as of now, the respondent IIIT is bound to implement the Career Advancement Scheme, as per the order dated 30.12.2009. In the considered opinion of the Court, UGC regulations dated 30.06.2010 have full application to the facts of this case and therefore, Clause 6.0.0 of the said regulations would have application to CAS and the private respondents also sent a letter to the 12th/14th respondent seeking clarification and the 12th/14th respondent has also clarified the same in its clarification letter dated 26.11.2013 and therefore, it cannot be said that re-designation/Career Advancement Scheme from the post of Assistant Professor to the post of Associate Professor is automatic and it is subject to selection procedure as contemplated under the above said statutory regulations. The counter affidavit filed by the Ministry of Human Resources Development in M.P.Nos.1/2013 in these writ appeals also makes it clear that after fulfilling the eligibility criteria, the promotion under Career Advancement Scheme is subjected to other conditions of academic performance laid down by the UGC and University/Institute, if any and all Centrally Funded Institutions including the first appellant are bound to implement the order issued by the Central Government from time to time.
17. The Hon'ble Supreme Court of India in the decision reported in S.S.Grewal v. State of Punjab and Others [1993 Supp (3) SCC 234], has considered the issue with regard to the clarification and held that according to the principles of statutory construction a statute which is explanatory or clarificatory of the earlier enactment is usually held to be retrospective.
18. In S.B.Bhattacharjee v. S.D.Majumdar and Others [(2007) 10 SCC 513], promotion to the post of Executive Engineer governed by Mizoram Engineering Service Rules came up for consideration and the State of Mizoram, issued an office memorandum laying down the procedures to be observed by the Departmental Promotion Committee and the Hon'ble Supreme Court of India has observed that with a view to give effect to the statutory rules governing the field, the State of Mizoram has issued the said office memorandum directing that the procedure laid down shall be observed by the Departmental Promotion Committee and the clarification being explanatory and/or clarificatory, will have a retrospective effect.
19. A Division Bench of this Court in the decision in Union of India v. K.S.Krishnaswamy and another [2005 (2) CTC 661], has followed S.S.Grewal case (cited supra) and held that clarification is an integral part of office memorandum and the clarification does not have an independent existence and operation on it's own.
20. In the light of the statutory provisions in the form of UGC regulations which prescribes for selection process even in respect of Career Advancement Programme, this Court is of the view that the letter of the 12th/14th respondent dated 30.12.2009 should be read in consonance with the said statutory regulations and in fact, the 12th/14th respondent has also issued a further clarification letter dated 26.11.2013 stating that there is no provision for automatic movement or upgradation to the higher grade merely on completion of certain years of service. The judgment relied on by the learned Senior Counsel appearing for the private respondents in D.G.Indian Council for Agricultural Research and Others v. D.Sundara Raju made in Civil Appeal No.2714/2005 is not applicable to the facts of this case for the reason that in that case, a finding has been given that Career Advancement Scheme does not refer to or even remotely indicate that the interview of the candidate can provide a basis for determining his entitlement to promotion. The above said counter affidavit of the Ministry of Human Resource Development dated 21.04.2014 makes it very clear that Career Advancement Scheme is not a formality and it is not an automatic promotion and after devising suitable criteria, it has to be implemented by the institute.
21. In the light of the stand taken by the Ministry of Human Resource Development coupled with the clarification dated 26.11.2013 issued by it, there is no doubt that the private respondents who are aspiring to become Associate Professors after fulfilling the eligibility criteria, their promotion under Career Advancement Scheme is subjected to other conditions of academic performance laid down by the UGC and University/Institute, if any and the first appellant is also bound to implement the order issued by the Central Government from time to time. Though it is submitted by the learned Senior Counsel appearing for the private respondents that only as per the VI Pay Commission recommendation, the post of Associate Professors came into being and therefore, the subsequent clarification has no application to the case on hand, it is to be rejected for the reason that the very same official has issued the earlier communication dated 18.08.2009, which is relied on by the private respondents and he has also issued the subsequent clarification dated 26.11.2013 stating among other things that there is no provision for automatic movement or upgradation to the higher grade merely on completion of certain years of service and any upgradation is to be done only on the recommendation of a duly constituted selection committee. The counter filed by the Ministry of Human Resources Development - 12th/14th respondent also makes it very clear that the Career Advancement Scheme is not a formality and it is not an automatic promotion.
22. In the case on hand, as already observed, statutory provisions in the form of UGC regulations provides for performance evaluation in the form of Career Advancement Scheme and in fact, the learned Judge has also observed in para 29 of the order that until the Central Government modifies or clarifies the Career Advancement Scheme any further, as of now, IIIT is bound to implement the order dated 30.12.2009 and in the light of the clarification dated 26.11.2013, the stand of the private respondents that they are entitled to move to the post of Associate Professors automatically, is wholly untenable. It is also contended by the learned Senior Counsel appearing for the private respondents that the point with regard to applicability of UGC regulations have not been put forward before the learned Judge and therefore, it cannot be adjudicated in these writ appeals and it is settled position of law that appeal is continuance of original proceedings and pursuance to the liberty granted by the learned Judge, clarification was also obtained by the 1st respondent supporting the stand of the appellants herein and therefore, the said point urged on behalf of the private respondents is to be rejected.
23. Hence, for the reasons assigned above, these writ appeals are allowed and the common order dated 27.08.2013 made in W.P.Nos.28312/2012 and W.P.No.23087/2012 is set aside and the writ petitions are dismissed. However, in the circumstances of the case, there shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed.
[N.P.V., J.] [M.S.N., J.] 10.06.2014 Index : Yes / No Internet : Yes / No jvm To The Secretary, Union of India, Ministry of Human Resources & Development, Government of India, Shastri Bhavan, New Delhi-110 001.
N.PAUL VASANTHAKUMAR, J., AND M.SATHYANARAYANAN, J.
jvm Common Judgment in W.A.Nos.2187 and 2188 of 2013 10.06.2014