Calcutta High Court (Appellete Side)
Dr. Sachindra Nath Paul vs State & Ors on 1 March, 2016
1
March 01,
2016.
R.C.
W.P 21949 (W) OF 2015
Dr. Sachindra Nath Paul
Vs.
State & Ors.
WITH
W.P. 17856 (W) OF 2015
Smt. Debolina Chakrabarty
@ Debolina Sarma Chaudhury
Vs.
State & Ors.
WITH
W.P. 21950(W) OF 2015
Dr. Ahana Biswas
Vs.
State & Ors.
WITH
W.P. 21951 (W) OF 2015
Dr.Sudipta Mukherjee
Vs.
State & Ors.
WITH
W.P.21939 (W) OF 2015
Dr.Piali Bandyopadhay(Datta)
Vs.
State & Ors.
WITH
W.P.21940 (W) OF 2015
Dr. Jaydeep Rishi
Vs.
State & Ors.
WITH
W.P. 21941 (W) OF 2015
Dr. Nilendu Sengupta
Vs.
State & Ors.
2
Mr. N.C. Bihani,
...for Petitioners(In all matters)
Mr. Anil Kumar Gupta,
...for U.G.C.(In all matters)
Mr. Kamalesh Bhattacharya
Mr. Swapan Kumar Pal,
...for State (In W.P.21950 (W) of 2015)
Mr.J.L. De
Ms.Smita Das De
...for State( In W.P. 21951(W) of 2015)
Mr.Amal Kumar Sen
Mr.Sabyasachi Mondal,
...for State (In W.P.21949 (W) of 2015)
Mr. Tapan Mukherjee
Mr.Rabindra Narayan Dutta,
...for State (In W.P.17856 (W) of 2015)
Mr.Tapan Mukherjee
Mr. Bikash Kumar Mukherjee,
...for State (In W.P.21939 (W) of 2015)
Mr. Biswajit De
Mrs. Tapati Samanta,
...for State in (W.P.21940(W) of 2015)
Ms.Sipra Majumdar
Ms.Pravati Ghatak,
...for State (In W.P.21941 (W) of 2015)
By the consent of the parties, seven writ petitions
concerning similar facts and raising similar issues are taken up for
analogous hearing. For the purpose of convenience, the fact
situation prevailing in W.P. 21949 (W) of 2015 are adverted to.
3
The petitioner seeks quashing of the impugned memo dated
March 31, 2015. By the impugned memo, the State Government
purporting to interpret the UGC Grants Commission Regulation
2000 regarding minimum qualification on appointment and Career
Advancement of teachers in University and Colleges (hereinafter
referred to as the UGC Regulations 2000) as also the clarifications
said to have been given by the U.G.C. has proceeded to hold that
minimum length of service for eligibility to move into the Lecturer
(Senior Scale) would be four years for those having Ph.D., five
years for those M. Phil and six years for those at the level of
Lecturer and for eligibility to move into Grade of Lecturer
Selection Grade/Reader, the minimum length of service as Lecturer
(Senior Scale) shall be uniformly five years. The State did not
notice the hardship Clause in the U.G.C. Regulation, 2000. The
State has proceeded to say that they would revisit the pay fixation
of individual persons and would recover overdrawal amount, if
any.
The learned advocate for the petitioner submits that the
impugned memo did not take into consideration the U.G.C.
Regulations, 2000 in its entirety. It has failed to take into
consideration Clause 2.8.0, which provides for ameliorative
measures for hardship. According to him, the hardship Clause
allows a person to obtain the prerequisite qualification to get
promoted to the next post subsequent to his appointment in the
feeder post. The entirety of the service of such person is taken into
consideration for the purpose of considering the grant of promotion
to the next post. The hardship Clause is such that the entire length
of service is taken into consideration to see that a person is not
inconvenienced by the lack of his initial qualification. Attainment
of qualification subsequent to his appointment in the first post will
4
allow him the promotion as if the qualification was attained
initially.
The learned advocate for the petitioner refers to Clauses
2.1.0as also 2.8.0 of U.G.C. Regulations 2000. He refers to the Education Department Memo no.390 dated April 4, 1999 by which the State has understood the Clauses 2.8.0 in the manner as stated therein. The same interpretation as advanced by the petitioner in course of hearing is recorded in such memo. The State thereafter went and sought further clarification from U.G.C. which were not required. Ultimately, U.G.C. by a writing of March 2014 has reproduced Clause 2.1.0 of the U.G.C. Regulation 2000. It has also gone ahead and noticed Clause 2.8.0 of such U.G.C. Regulation 2000. According to him, the hardship Clause remains. The parties have to act in terms of the Clause hardship where a situation so warrants. The impugned memo does not take into consideration the hardship Clause and is therefore is bad.
The learned advocate for the U.G.C. submits that the clarifications sought on behalf of the State has been duly replied. The U.G.G. Regulations 2000 speaks for itself. The U.G.C. Regulations 2000 has a hardship Clause.
On behalf of the State, it is submitted that the Government has issued an order dated February 4, 1999. It has issued another Government Order dated April 9, 1999 in continuation of its Government order bearing no.390 dated April 5, 1999. According to the State, Clause 2.4.1 will come into operation for the purpose of granting the promotion from a Lecturer (Senior Scale) to the post of a Reader. A candidate must complete five years of service in the (Senior Scale) for a Lecturer to be promoted to a post of a Reader. In the instant case, the petitioner was appointed as a Senior Lecturer with effect from January 17, 2005 on his obtaining a Ph.D. degree. He ought to spend 5 years at such post in terms of Clause 5 2.4.1 before he is promoted to the post of Reader. Clause 2.8.0 does not come to the assistance of the petitioner in such a case. His appointment as a Reader on February 1, 2009 is therefore not in accordance with the U.G.C. Regulations 2000. Consequently, by the impugned memo the State is seeking to revisit such promotion along the pay fixation and to recover the overdrawal, if any. This is permitted in the U.G.C. Regulations 2000.
It is also contended on behalf of the State that, Clause 2.8.0 requires a person to be in a feeder post to have completed more than the total number of years required for promotion then only a person can claim hardship. In the instant case as the petitioner was appointed as a Lecturer (Senior Scale) on January 17, 2005 and in terms of Clause 2.4.1 he would have got promotion to the post of Reader after completition of five years in the post of Lecturer (Senior Scale) and in fact he has got such promotion on February 1, 2009, the same cannot be said to be greater than the number of years prescribed. Consequently, the appointment of the petitioner as a Reader for four years has to be revisited.
It is submitted on behalf of the State that the petitioner cannot rely upon negative equality to sustain his case. The fact that the State has given appointment to similarly situated and circumstanced person will not stand in the way of the State canvassing and urging the points urged today. In support of such contention, reliance has been placed on 2011 (3) Supreme Court Cases 436 (State of Orissa-Vs-Mamata Mahanti).
I have considered the rival contentions of the parties and the materials made available made on record.
What is the interpretations of Clause 2.8.0 in light of Clause 2.1.0 and 2.4.1 of the U.G.C. Regulation, 2000 is the issue up for consideration.
6The petitioner was appointed as a Lecturer on February 1m, 2000. He did not have a Ph.D degree at that point of time. H attained his Ph.D. degree on January 17, 2005. With a Ph.D. degree on his appointment as Lecturer he would have been promoted to Lecturer (Senior Scale) in terms of the U.G.C. Regulation, 2000 after 4 years from February 1, 2000, that is, February 1, 2004. However, since he had obtained the Ph.D. degree on January 17, 2005 he was given promotion to the post of Lecturer (Senior Scale) with effect from January 17, 2005. He was promoted to the post of Reader on February 1, 2009.
The University Grants Commission in exercise of powers under the University Grant Commission Act, 1956 promulgated the UGC Regulation 2000. U.G.C. Regulation, 2000 provides for career advancement. Career advancement is dealt with in Clause 2.1.0, 2.4.1. and 2.8.0. These are the relevant Clauses which require consideration in the facts of this case. These Clauses are as follows:
"2.1.0 Minimum length of service for eligibility to move into the grade of Lecturer (Senior Scale) would be four years for those with Ph.D., five years for those with M.Phil, and six years for others at the level of Lecturer, and for eligibility to move into the Grade of Lecturer (Selection Grade)/Reader, the minimum length of service as Lecturer (Senior Scale) shall be uniformly five years".
"2.4.1 A Lecturer in the Senior Scale will be eligible for promotion to the post of Reader if she/he has:
(i) Completed 5 years of service in the Senior Scale;
(ii) Obtained a Ph.D. degree or has equivalent published work;
(iii) Made some mark in the areas of scholarship and research as evidenced e.g. by self-assessment, reports of referees, quality of publications, contribution to educational innovation, design of new courses and curricula and extension activities.
(iv) After placement in the Senior Scale participated in two refresher courses/summer institutes of approved duration, or engaged in other appropriate continuing 7 education programmers of comparable quality as may be specified or approved by the University Grants Commission, and
(v) possesses consistently good performance appraisal reports.
2.8.0. If the number of years required in a feeder cadre are less than those stipulated in thus notification, thus entailing hardship to this who have completed more than the total number of years in their entire service for eligibility in the cadre, may be placed in the next higher cadre after adjusting the total number of years.
This situation is likely to arise as in the earlier scheme, the number of years required in a feeder cadre were much more than those envisaged under this notification."
By a letter dated April 14, 2000 U.G.C. had informed the Universities of the U.G.C. Regulations, 2000 requiring them to comply with them strictly.
Prior to U.G.C. Regulation, 2000 the U.G.C. notification dated September 19, 1991 and U.G.C. notification dated 24, 1998 were holding the field of career advancement. U.G.C. Regulation 2000 supercedes the previous notifications.
By virtue of the provisions of the University Grants Commission Act, 1956 the U.G.C. Regulation, 2000 has statutory force. It is binding on all concerned. The various Clauses of the U.G.C. Regulation, 2000 therefore, should be read harmoniously to give efficacy to all the Clauses. None of the Clauses should be read in a manner to make a Clause or a portion of its superfluous or otiose. An interpretation, which gives a harmonious construction to all the Clauses of the U.G.C Regulation, 2000 without rendering any Clause as superfluous or redundant should be preferred.
Clause 2.1.0 requires a minimum length of service for eligibility to move into the Grade of Lecturer (Senior Scale) and 8 therefrom to the Grade of Lecturer, Selection Grade/Reader. It distinguishes between persons who have higher qualification with that who does not have the same for the length of period required to move from one post to the other.
Clause 2.4.1 lays down that a Lecturer in a (Senior Scale) would be eligible for promotion to the post of Reader if such Lecturer have completed five years of service in the (Senior Scale) apart from the other criteria prescribed therein.
Clause 2.8.0 is the hardship Clause. The hardship Clause seeks to ameliorate the grievance of a person who obtains a higher qualification subsequently. It recognizes that in such as a situation the entire period of service of such person would be taken into consideration for the purpose of considering the grant of promotion of such person to the next post.
A Lecturer to move into the post of Lecturer (Senior Scale) would require a Ph.D degree within four years, a person with a M.Phil degree will have Lecturer (Senior Scale) post in five years, while a person with other level of qualification will require six years time. However, the hardship Clause takes into account that a person may obtain a Ph.D. or a M.Phil in the interregnum. The obtaining of the higher qualification subsequent to the appointment to one post would not impede the career advancement. Rather it would assist in the career advancement by allowing the period of service spent to be taken into consideration. Without the hardship Clause coming into operation, and if the interpretation of the State is to be accepted, then a Lecturer with a m.phil and without a Ph.D. degree has to wait for 5 years to move to Lecturer (Senior Scale) and not to be advanced to the post of Reader on promotion at all. However, such person may obtain a Ph.D degree 5 years subsequent to his appointment as a Lecturer. Then, in terms of the hardship Clause, he would be given the appointment of a Lecturer 9 (Senior Scale) on the date of obtaining of his Ph.D degree as he had till the date of his obtaining the Ph.D. spent more time than required under the U.G.C. Regulation in the post of Lecturer to advance to the post of Lecturer (Senior Scale). His next career advancement to the post of Reader would be considered on the basis of the total length of his service from the date of his appointment as a Lecturer. The hardship Clause provides for such an eventuality. The hardship Clause also notifies that the previous notification of U.G.C. had prescribed other periods of time for career advancement. Therefore, to bring about an uniformity in career advancement and in order to prevent hardship to the persons affected, the hardship Clause has been introduced.
This interpretation allows the hardship Clause to remain in harmony with all other Clauses of the U.G.C. Regulation, 2000.
The clarification that the State Government had obtained from U.G.C. from time to time speaks uniformly that the U.G.C. Regulations 2000 have a hardship Clause. One has to take into account the hardship Clause while considering an individual case.
The impugned memo dated March 31, 2015 has not taken into consideration the hardship Clause at all. The interpretation and the U.G.C. Regulation 2000 given in the impugned memo are contrary to the U.G.C. Regulation 2000. The same therefore cannot be sustained. The impugned memo dated March 31, 2015 is set aside.
In Mamata Mahanti (supra), the Hon'ble Supreme Court has held that a person cannot enforce negative equality. In the present case of the petitioners before me are not enforcing any negative equality. Their rights flow out of the U.G.C. Regulation 2000. On a proper construction the U.G.C. Regulation, 2000 impugned memo dated March 31, 2015 cannot be upheld.
10Consequent to the setting aside of the impugned memo dated March 31, 2015, the authorities will consider the individual cases of the petitioners before me in accordance with law.
In such circumstances, seven writ petitions being (W.P.21949 (W) of 2015, W.P.17856 (W) of 2015, W.P.21950 (W) of 2015, W.P.21951 (W) of 2015, W.P.21939 (W) of 2015, W.P.21940 (W) of 2015 and W.P.21941 (W) of 2015 are allowed without any order as to costs.
Consequent to the setting aside of the impugned memo dated March 31, 2015, the authorities will consider the individual cases of the petitioners before me in accordance with law.
Urgent photostat certified copy of this order be given to the parties on priority basis after compliance of all formalities as to costs.
(DEBANGSU BASAK-J)