Karnataka High Court
Dr G Prabhakar vs The Director on 15 February, 2016
Bench: Mohan M. Shantanagoudar, K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2016
:PRESENT:
THE HON'BLE MR.JUSTICE MOHAN M. SHANTANAGOUDAR
:AND:
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
WRIT PETITION NO.44163/2014 (S-CAT)
BETWEEN:
DR.G.PRABHAKAR,
S/O LATE G.SUBBAIAH,
AGED 53 YRS., PRINCIPAL,
SOUTHERN REGIONAL
LANGUAGE CENTRE,
CENTRAL INSTITUTE
OF INDIAN LANGUAGES,
MYSORE - 570 006.
R/A NO.117, 5TH CROSS,
TELECOM LAYOUT,
BHOGADI II STAGE,
MYSORE - 570 026.
... PETITIONER
(BY SRI.V.LAXMINARAYANA SR.COUNSEL FOR
SRI.VIKRAM BALAJI B.L AND
SRI.K.S.NARESH SANTHOSH, ADVOCATES)
AND:
1. THE DIRECTOR,
CENTRAL INSTITUTE OF
INDIAN LANGUAGES,
MINISTRY OF HUMAN
RESOURCES DEVELOPMENT,
2
DEPARTMENT OF HIGHER EDUCATION,
GOVERNMENT OF INDIA,
MANASA GANGOTHRI,
MYSORE - 570 006.
2. THE UNION OF INDIA,
REP. BY THE SECRETARY,
MINISTRY OF HUMAN
RESOURCES DEVELOPMENT,
DEPARTMENT OF HIGHER EDUCATION,
SHASTRI BHAVAN, 'C' WING,
NEW DELHI.
3. DR.G.VIJAYA SARATHI,
LECTURER (SG), AGED MAJOR,
CENTRAL INSTITUTE OF INDIAN LANGUAGES,
MYSORE.
4. DR.M.BALAKUMAR,
ASSISTANT DIRECTOR (ADMN) I/C,
AGED MAJOR,
CENTRAL INSTITUTE OF INDIAN LANGUAGES,
MINISTRY OF HUMAN RESOURCES DEVELOPMENT,
DEPARTMENT OF HIGHER EDUCATION,
GOVERNMENT OF INDIA, MANASA GANGOTHRI,
MYSORE - 570 006.
...RESPONDENTS
(BY SRI.X.M.JOSEPH, ADV., FOR R1 AND R2,
SRI.DR.G.VIJAYA SARATHI, R3 [IN PERSON].
R4 - NOTICE DISPENSED WITH V/O DTD: 26.11.2015)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER AT ANNEXURE-F DTD.3.9.2014 PASSED BY
THE CAT IN ORIGINAL APPLICATION NO.307/2014
CONSEQUENTLY ALLOW THE ORIGINAL APPLICATION
NO.307/2014, ETC.
THIS WRIT PETITION HAVING BEEN RESERVED FOR
ORDERS ON 25.01.2016, COMING ON FOR 'PRONOUNCEMENT
3
OF ORDER' THIS DAY, K.N. PHANEENDRA, J., PASSED THE
FOLLOWING:
ORDER
The petitioner, aggrieved by the order passed by the Central Administrative Tribunal, Bengaluru Bench (for short, 'CAT'), in dismissing his petition in Original Application No.307/2014 dated 03.09.2014 has approached this court seeking setting aside the said order and consequently for grant of other remedy as sought in his application before the CAT.
2. The petitioner has approached the CAT calling in question Annexure-A2 passed by the Assistant Director, Central Institute of Indian Languages (herein after called as CIIL) dated 07.02.2014. Under Annexure A2 the 4th respondent has passed the order in favour of Respondent No.3 directing him to function as Principal Incharge of Southern Regional Language Centre (for short 'SRLC') with effect from 07.02.2014 in addition to his regular duties until further orders. Consequently a direction was issued to the petitioner to hand-over the 4 charge to the 3rd respondent as Principal Incharge of SRLC.
3. The brief factual matrix are that, the Respondent No.3 was directly appointed by UPSC, to SRLC as a Lecturer-cum-Junior Research Officer on 04.08.1980. The petitioner was also directly appointed by UPSC to the same Institution (SRLC) as a Lecturer-cum- Research Officer on 13.03.1995 respectively. Their services were confirmed w.e.f. 05.04.1996.
There is a post of Principal in the said SRLC, which has to be filled by means of direct recruitment as per the Recruitment Rules 1987 issued by the Ministry of Human Resources Development ( for short, 'MHRD') vide notification dated 22.07.1987, which is marked at Annexure-R21. It is not in dispute that Respondent No.3 was deputed for project work of CIIL on 28.01.2010 and he started working for CIIL from that day, however the petitioner continued in SRLC.
5
When the matter stood thus, the post of Principal fell vacant on 30.06.2011 on account of retirement of the then Principal. Upon the letter of the erstwhile Principal who was working, Respondent No.3 was offered to work as the Principal In charge and consequently the consent of Respondent No.3 was sought as per Annexure-A9. The Respondent No.3 however explained that, his services are required in CIIL for the purpose of completion of the project already entrusted to him. Hence he did not choose to work as Incharge Principal of SRLC for the time being. In fact that is the stand taken by Respondent No.3 in his objection statement before the CAT. By virtue of such action on the part of Respondent No.3, the petitioner subsequently was offered to work as Principal Incharge of SRLC. In that context, the petitioner had been discharging his duties in addition to the work of Principal incharge of SRLC.
Subsequently, on 16.10.2012 the Respondent No.3 was repatriated to his parental institution i.e. SRLC. 6 Respondent No.3 after his repatriation, has made representations on the ground that himself and the petitioner are in the same cadre holding substantive post. But, he is the senior most having 15 years of experience more than the petitioner. Therefore, he should be considered for being assigned the work of Incharge Principalship at SRLC if not he can't work there under the petitioner as petitioner is much Junior to him. Considering the said request of Respondent No.3, the Respondent No.4 passed an order on 07.02.2014 as per Annexure-A2 asking Respondent No.3 to function as Principal Incharge, which order was challenged before the CAT and the CAT has upheld the action of the Respondent No.4.
The main contention of the petitioner is that the petitioner and Respondent No.3 though appointed directly for the posts of lecturer-cum- Junior Research Officer, but subsequently, since 2005, he was promoted to the post of "Reader" by virtue of Cadre Seniority which post is 7 equivalent to the post of Reader-cum-Research officer/principal. considering that seniority, he has been posted as Principal Incharge of the SRLC. However, Respondent No.3 who still belonged the grade of Lecturer, has no right to work as Principal Incharge and therefore, the action of Respondent No.4 in calling upon the Respondent No.3 to act as Principal Incharge is arbitrary, unjust and unfair.
On the contrary, the Respondents- 1, 2 & 4 have taken up the contention that when compared to the length of service between the petitioner and Respondent No.3. Respondent No.3 is the senior most and therefore, by virtue of the repatriation to the parental department (SRLC), he is entitled to be an Incharge of the Principal, as he has been drawing more salary both basic and net salary compared to the petitioner. Further, it is contended that though the petitioner was designated as a Reader, it is only by virtue of the Career Advancement Scheme (for short, 'CAS') and not as promotion as such to 8 any substantive post as a Reader. Further, it is contended that there is no sanctioned post of 'Reader' in the Regional Language Centers, therefore, only financial upgradation was given to the petitioner under the Career Advancement Scheme. Therefore the financial upgradation under that scheme is not a promotion given to the petitioner. Therefore, the petitioner continues to be in the substantive post of 'Lecturer' as Respondent No.3. Therefore, there is no illegality committed by Respondent No.4 in calling upon Respondent No.3 to work as Principal Incharge in addition to his regular work. Further it is contended that, it is only a temporary stop gap arrangement till the post of principal is filled by direct recruitment as per the rules.
4. Respondent No.3 has also seriously contested the petition before the CAT and before this court. It is submitted that the erstwhile Principal knowing that he was retiring, has sent a later to the 4th respondent stating that, the Respondent No.3, by virtue of his length of 9 service and seniority, is a fit person to be posted as Principal Incharge. As at that point of time, Respondent No.3 was occupying the key post in CIIL to which he was transferred from SRLC and he had to look after several important schemes like NTM, QLA CESCT and there was no person, who is so adequately equipped to replace him; Hence in the better interest of the Institution, the Respondent No.3 did not accept the offer at the first instance to work as Principal Incharge at SRLC. It is also contended that there were only two grades of posts, i.e., Reader-cum Research Officer/Principal and Lecturer- cum-Junior Research Officer as per the C & R Rules issued by the Ministry of MHRD dated 22.07.1987. There is no cadre such as 'Reader' as claimed by the petitioner. He also reiterates that under career advancement scheme, if any upgradation is given or financial benefit is given, that will not enure to the benefit of any person to occupy the substantive post or it cannot be treated as 'Promotion'. Therefore, it is contended that after his repatriation, Respondent No.4 has correctly and properly 10 invited Respondent No.3 to work as Principal Incharge in addition to his regular work. There is no illegality committed by Respondent No.4.
5. Considering the above said contentions, the CAT has come to the conclusion that the order passed by the 4th respondent on 07.02.2014 does not call for any interference and therefore, it dismissed the petition filed by the petitioner.
6. Sri. Laxminarayana, the learned Senior Advocate for the petitioner, has taken us through several documents particularly with reference to the UGC Regulations (UGCR) and contended that there is a post called 'Reader' under UGC Regulation and the petitioner has been promoted as 'Reader from the post of Lecturer as per the UGCR and therefore, he stand above the petitioner as the post of 'Reader' is declined to him, and as such, he continued in the cadre of Lecturer. Therefore, he is not entitled to be called upon to discharge the duties of 'Principal Incharge'. He drawn our attention to several 11 documents which we are going to discuss little later and argued before us that the petitioner is a competent person to be posted as Principal Incharge. The post of 'Reader' is equivalent to 'Reader-cum-Research Officer', which is in turn equivalent to the post of Principal of SRLC. There is a provision under the C & R rules issued by MHRD for the post of Reader-cum-Research Officer in the Central Institute of Indian Languages which is interchangeable to that of the Principal in the Regional Languages Centers and vice versa, is permissible. Therefore, the petitioner is the competent person to work as 'Principal Incharge'. Therefore, he contended that mere seniority in length service compared to the qualification is not sufficient for to hold the post of 'Principal' or even 'Principal Incharge'. Therefore, the 4th respondent has committed serious error in calling upon Respondent No.3 to discharge his duties as 'Principal Incharge' in addition to his work. The Tribunal has also not properly appreciated and considered this aspect. Hence, the same is liable to be set aside. 12
7. Per contra, Sri. X.M. Joseph, Learned counsel appearing for Respondent Nos. 1, 2 & 4 has strenuously contended in support of the contentions taken up by way of statement of objections. His principal contention is that the University Grants Commission Regulations ( for short, 'UGC Regulations') relied upon by the Petitioners counsel are not applicable so far as the Regional Language Centers are concerned, particularly CIIL and SRLC. The said Institutions are working under the MHRD and not under any universities, nor the institutions are affiliated to any University. Therefore, C & R Rules issued to MHRD is only applicable and not UGC Regulations. Secondly, it is contended that whatever the financial upgradations that have been given equivalent to the post of Reader or even to the post of Reader-cum-Research Officer, is only a personal financial benefit to the petitioner and it will not enure any promotion as such to the said post, and The substantive post remain as the same and it will not impair the seniority amongst the equals. When such being the case, considering the long service of Respondent No.3 with 13 that and the petitioner, the Respondent No.3 was called upon to hold the additional charge of the Principal as Principal Incharge for the time being. Thirdly, it is contended that the incharge arrangement is only the Administrative Action of Respondent No.4. There is no right to the parties as such to claim the said post as a matter of right. Therefore, it is purely an internal temporary arrangement for the time being made by Respondent No.4 exercising his discretion, which is justifiable. Hence, there is no room for interfering with such an action. Therefore, the CAT properly appreciating the above said facts and legal aspects, dismissed the petition. Therefore, no interference is called for in the impugned order. Hence, the learned prayed for dismissal of the petition.
8. Respondent No.3-Dr. G. Vijaya Sarathi, the party-in-person also reiterated the above said aspects and he has also filed a detailed written arguments. There is no need for us to go through in detail the said written 14 arguments because the contentions of Respondent Nos. 1, 2 & 4 is same as that of the contentions of Respondent No.3.
9. Now we would like to examine on what important aspects, the petitioner claims that he is occupied the superior post than Respondent No.3 in order to claim the said position of principal in charge in SRLC. There is no dispute that, earlier the petitioner was called upon to discharge his duties as Principal Incharge in addition to his regular work as per Annexure-1. The petitioner claims that he has been designated as 'Reader'. He drawn our attention to the UGC Regulations particularly at provision- 2.4.0 which reads this: Reader (Promotion), 2.4.1., which prescribes the qualification to become a reader. It says , "The Lecturer in the Senior Scale will be eligible for promotion for the post of Reader if she/he has,-
i) Completed five years of service in the Senior Scale;
ii) Obtained a Ph.D degree or equivalent published work; 15
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;
xxx xxx xxx xxx (Rest is not applicable)."
10. The petitioner claiming that he obtained Ph.D. Therefore, he is eligible for the promotion to the post of 'Reader'.
11. The MHRD has appointed a Selection Committee for recommendation to the grade of 'Reader' in Pay-Scale of Rs.12,000-420- 8,300 in the department of Higher Education for the Teachers for granting of Career Advancement Benefits, on the basis of UGC Scales to the eligible Lecturer-cum-Junior Research Officers working in the Central Institute of English Language in Mysuru and varies Regional Language Centers, Of course on 08.08.2006 committee recommended the name of the petitioner, who is the 5th person in the said report, to the effect that the committee recommended some persons for 16 placement of them to the grade of Reader in the Pay Scale of Rs.12,000 - 420 - Rs.18,300.
On the basis of such recommendations, the CIIL vide its order dated 28.06.2012 has given the second upgradation and placed the petitioner in the scale of Reader in the above said Pay band with consequential benefits. Earlier to that, under the Career Advancement Scheme, one upgradation was already given to the petitioner and wherein it is stated that fixation of pay inter-se seniority etc. of the above officers will be governed by the provisions in the Career Advancement Scheme of the UGC, subject to alteration if any done in the Rules governing service conditions of the Central Government employees. It is also specifically sated that the benefit of promotion to the officer concerned is only on the personal basis and shall not involve creation of new posts for that purpose. As and when the post fall vacant, shall be filled- up in its original level only by new incumbents. The first upgradation was given to the petitioner on 05.04.2001 17 pursuant to the Career Advancement Scheme. The records discloses that the petitioner under the said scheme was designated as 'Reader'.
12. The records produced before the court also discloses that, Respondent No.3 was also given the selection grade scale lecturer in pay-band of Rs.12,000 - Rs.18,300. Further, on 13.03.2009, the Pay Scale of Respondent No.3 was revised in pursuance of 6th Central Pay Commission w.e.f. 01.06.2006 and he was placed in the pay-band of Rs.13,800/- plus AGP of Rs.9,000/-. On 13.09.2009, the pay scale of petitioner was also revised simultaneously w.e.f. from the same day ie., 01.07.2006. But, he was placed in the lower Pay Scale of Rs.21,020 with AGP of Rs.7,000/-.
13. Looking to the above set of facts and circumstances and the documentary materials available on record, though the UGC Regulations shows that a person is eligible for the promotion as 'Reader', if he has got five years of service in the Senior Scale or Ph.D 18 Decree. Even accepting that the petitioner is a holder of Ph.D., whether that itself is sufficient to come to a conclusion that it is a promotion given to him to the said post of "Reader" and in turn is entitled to the said work of Principal Incharge as a matter of right. The documents produced nowhere disclose that the petitioner is posted as 'Reader-cum-Research Officer on promotion, though it is argued that "Reader" post is equivalent to Reader cum Research Officer post.
14. The C & R Rules, 1987 issued by MHRD shows that the post of Reader-cum-Research Officer is equivalent to the post of Principal. But this post has to be filled-up by means of direct recruitment, which can be borne-out from Annexure-R21. The Learned counsel strongly relied upon the Note No.6 under the said cadre which says that "Transfer from the post of Reader-cum-
Research Officer in the Central Institute of Indian Languages to the post of Principal in the Regional Language Centers and vice versa is permissible". 19 Therefore, the petitioner contends that he being the Reader which is equivalent to the post of Reader-cum- Research Officer, under the UGC Regulations. Hence, his cadre is superior to the cadre of the respondent No.3. But it is incumbent upon the petitioner to show that he was holding the substantive post of 'Reader-cum-Research Officer on promotion and therefore, he is senior to Respondent No.3 and he was discharging his duties in the superior cadre. Therefore, he should have been preferred by Respondent no.4 for the purpose of calling upon him to the work of Principal Incharge.
In our opinion, the qualification of Ph.D itself will not come to the aid of the Petitioner unless there was an actual promotion to the Reader cum Research officer post, which is the cadre higher than the cadre in which Respondent No.3 has been working. So far as the pay scales are concerned, it is evident that Respondent No.3 has been drawing more salary than the petitioner and he 20 is more experienced in length of service than the petitioner.
15. The contention of the learned counsel for the respondent No.3 is that in order to apply UGC Regulations, the CIIL or SRLC shall come within the definition of University or Institution affiliated to any University. Though Sri. Laxminarayana, the learned counsel has contended that the UGC Regulations are applicable, but there is absolutely no documentary evidence produced before the court to show that SRLC and CIIL are the Institutions coming under any of the Universities. On the other hand, the documents which are produced before the court, viz., the orders and recommendations, committee reports etc., which we have referred to above, show that these two Institutions are working under MHRD, Government of India. Nowhere in any of these documents these Institutions referred as Universities or the Institutions affiliated to any of the Universities. On the other hand, the C & R Rules issued 21 by MHRD dated 22.07.1987 itself indicates that the Indian Institute of Indian Languages and its Regional Language Centers are governed by the notification issued on 22.07.1987 which Rules are called as "Central Institution for Languages and its Regional Language Centers: Grade-A and Grade-B Recruitment Rules, 1987."
As could be seen from this document, there are only two important cadres viz., one is 'Reader-cum- Research Officer' Principal and the Lecturer/as an Junior Research Officer. We have already said that these two posts are to be filled up by way of direct recruitment. There is no cadre as such referred as 'Reader' under these Rules, but it is referred to under UGC Regulations. When there is no document to show that these Institutions are Universities or institutions affiliated to any University, it cannot be said that the UGC Regulations are applicable so as to consider the existence of a 'Reader' Post either in CIIL or SRLC. In the absence of such materials, the argument of the learned counsel for the petitioner cannot be accepted. 22
16. It is worth to note here the definition given to 'University' under the University Grants Commissions Act 1956, which reads thus:
""University" means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognized by the Commission in accordance with the regulations made in this behalf under this Act."
Section-22 of the UGC Act also says as under:-
"22.Right to confer degrees,- (1) The right of conferring or granting degree shall be exercised only by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or on institution deemed to be a University under Section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees."
17. Sofar as the Affiliation of the colleges to the Universities are concerned, the University Grants 23 Commission has issued a Regulation in the year 2009, which is called as UGC (Affiliation of Colleges by Universities) Regulations, 2009. Regulation-2 of the said Regulation, which defines the terms 'Affiliation' and 'College' reads as under:-
"2. Definitions: In these Regulations:
2.1. "Affiliation" together with its grammatical variations, includes, in relation to a college, recognition of such college by, association of such college with, and admission of such college to the privileges of , a university;
2.2. "College" means any institution, whether known as such or by any other name which provides for a programme of study beyond 12 years of schooling for obtaining any qualification from a University, is recognized by the UGC as competent to provide for such programme of study and present students undergoing such programme of study for the examination for the award of such qualification."24
Regulation-2.2 refers to a Programme of Study beyond 12 years of schooling for obtaining any qualification from the University and which in accordance with the Regulation of the University recognized by the UGC, as competent to provide for such programme of study and present students undergoing such programme. That means, the college which is competent for affiliation shall provide a programme of study for the purpose of obtaining any qualification from a University that is the degree to be provided by the University. The programme of study is also defined under Regulation-2.5, which reads as follows:-
2.5. "Programme"/"Programme of Study" means a higher education programme pursued for a degree specified by the Commission under Section 22(3) of the UGC Act;
Looking to the above said provisions, it is clear that the Institution must have a Programme of Study, which entitles a person who is studying under the said 25 Programme for a degree to be provided under the UGC Act under Section 22.3 of the Act as noted above.
18. Learned counsel for the petitioner has not provided any document to show that the above said conditions are fulfilled by the CIIL or SRLC to consider them either as 'University' or the 'College' or the 'Institution' affiliated to the University Grants Commission.
19. Section-2(f) of University Grants Commission Rules mandate that the UGC Regulations are only applicable to the Universities or the Institutions affiliated to any Universities. In this regard, Sri. Awadesh Kumar Mishra, the Director of the 1st respondent-Central Institute of Indian Language [CIIL], has filed an affidavit on 25.01.2016 before this court categorically swearing to the facts that the Central Institute of Indian Languages (CIIL) situate at Mysuru, is a subordinate office of the MHRD , Government of India, New Dehli. The CIIL with its Seven Regional Languages Centers is neither a University 26 under Section 2(f) of the UGC Act, 1956, nor the deemed University under Section 3 of the UGC Act, 1956.
In view of the above discussion it can not be said that the institutions SLRC or CIIL are governed by UGC Act or Regulations.
In this regard, the court has to see whether the upgradation of the financial benefits as that, to the post of Reader which is equivalent to 'Principal' Post or Cadre confer any substantive promotion to the parties. In this regard Learned counsel for the petitioner has relied upon the Ruling reported in 2015 (6) SCC 363 between Kalyani Mathivanan Vs. K.B. Jeyaraj & Others. He particularly relied upon Para-62 of the said Judgment, wherein a reference is made to the UGC Regulations. In the said paragraph, the Hon'ble Apex Court has observed that,-
"i) The UGC Regulations-2010 being passed by both the Houses of Parliament, though a subordinate 27 legislation, has binding effect on the universities to which it applies;
ii) The UGC Regulations2010 are directory for the universities, colleges and other higher educational institutions under the purview of the State Legislation as the matter has been left to the State Government to adopt and implement the scheme. Thus the UGC Regulations-2010 are partly mandatory and is partly directory of those State Legislation is concerned."
Therefore, it is submitted that the State Government has adopted the UGC Regulations. The post of 'Reader' is equivalent to that of 'Reader-cum-Research Officer'. Hence, UGC Regulations have to be applied sofar as it relates to C & R Rules are concerned. But, as we have already referred to above, the petitioner has not shown that CIIL or SRLC are the Universities or the Institutions which are affiliated to the Universities. Therefore, when the Central Government has issued the C & R Rules as noted above, are specifically applicable to the Central 28 Institute of Indian Languages and Regional Language Centers and the same C & R Rules are not applicable to the Universities.
20. The learned counsel for the respondent has drawn our attention to a decision of this court reported in 2004(5) Kar.L.J. 352 (DB) between the Indian Institute of Sciences (SC/ST Employees Welfare Association (Regd.), Bengaluru Vs. Indian Institute of Sciences, Bengaluru and Another, wherein this court has observed as to how the Career Advancement Scheme operates when the upgradation has been given under the said Scheme, Para-22, which reads as under:-
"22. We have already noticed that the SC/ST Welfare Association had all along contended that Career Advancement Scheme did not involve any promotion but only involved grant of monetary benefit. The Institute has also all along stated that Career Advancement Scheme involves only extension of monetary benefit and not promotion. The Institute has explained (see para-14 supra) that grant of higher grade under the CA Scheme does not result in the employee getting promoted to a 29 higher post and that placing of an employee in a higher grade is personal to the employee and is not subject to availability of any vacancy in the higher cadre; that an employee continues in the same post and in the same cadre even after grant of higher grade under the CA Scheme; that promotion would arise only when a vacancy in a higher cadre is filled; that the number of persons promoted to a higher post, is restricted to the number of vacancies and is based on relative performance, whereas grant of a higher pay scale by evaluation under the CA Scheme is neither against any vacancy nor based on relative performance, but with reference to the individual performance during a stipulated period, and all who are successful in the evaluation are placed in the higher grade as personal to that employee without reference to the number of posts. Grant of higher grade on evaluation under the CA Scheme therefore does not involve promotion to a (higher) post.
21. In another Ruling reported in (2015) 8 SCC 129 between P. Susheela and others Vs. University Grants Commission and others, the Apex Court has observed that,-
30
"Right to be considered for appointment is not a vested right and this right is always subject to the minimum eligibility conditions and till such time as an appointment is made, no vested right arises, and different eligibility conditions may be laid down at different times" ....... At different times, In another decision reported in AIR 1993 SC 2273 (State of Haryana Vs. S.M. Sharma and others) at Para-9, the Apex Court has observed as follows:-
"9. It is only a posting order in respect of two officers. With the posting of Ram Niwas as Executive Engineer Sharma was automatically relieved of the current duty charge of the post of Executive Engineer. Sharma was neither appointed/promoted/posted as Executive Engineer nor was he ever reverted from the said post. He was only holding current duty charge of the post of Executive Engineer. The Chief Administrator never promoted Sharma to the post of Executive Engineer and as such the question of his reversion from the said post did not arise. Under the circumstances the controversy whether the powers of the Board to appoint/promote a person to the post of an Executive Engineer were delegated to the Chairman or to the Chief Administrator, is wholly irrelevant."31
This court in a similar set of facts and circumstances had an occasion to deal with the matter between Dr. Pon Subbaiah Vs. Union of India in W.P. No.24502/2013 disposed of on 04.12.2013, has observed at Para-6 that,-
"6. ..... The pay-scale attached to the post of Professor is provided to the petitioner under Career Advancement Scheme. The concerned Rules specify that the post of Professor-cum- Deputy Director is filled-up through direct recruitment only. There is nothing on record to show that the petitioner was appointed as Professor-cum-Deputy Director by direct recruitment. On the other hand, the case of the petitioner is that he is promoted to the post of Professor, since the rule prohibits promotion, there is no question of promoting the petitioner to the post of Professor...."
Therefore, we have observed that it is only an upgradation of the financial enhancement under the 32 Career Advancement Scheme and it cannot be said to be a promotion.
22. The above said Rulings make it abundantly clear that the Financial upgradation that was given to the petitioner is only with reference to the Career Advancement Scheme and Higher pay was given equivalent to the pay attached to the post of 'Reader' or 'Reader-cum-Research Officer', but it cannot be equated with the promotion to the said substantive post. Hence the said person can not discharge duties of 'Reader' or 'Reader-cum-Research Officer/Principal' as such. There is nothing on record to show that the petitioner is appointed actually as such to the post of 'Reader' or 'Reader-cum- Research Officer'. In the absence of such materials, it is very difficult to accept the contention of the petitioner.
23. The 4th respondent in fact, has rightly considered that, such promotional post of 'Reader' or 'Reader-cum-Research Officer' itself is not available. Hence, though the petitioner might have possessed higher 33 qualification than the petitioner, that will not come to his help, inasmuch as he continues to be in equal cadre as that of Respondent No.3. When such being the case, Respondent No.3 being appointed 15 years earlier to Respondent No.3 and in fact drawing more salary than the petitioner, was rightly chosen to work as Principal Incharge in addition to the work already assigned. Moreover, as rightly observed, the petitioner has no vested right to claim that he shall be put as Principal Incharge. It cannot also be said that he may legitimately expect to hold the Principal post. On the other hand, it is the discretionary power of the 4th respondent to select or request any of the persons, who are in the equal cadre for the purpose of discharging the duties as Principal Incharge. Considering seniority in service and also considering the fact that Respondent No.3 is drawing more salary than the petitioner, the Respondent No.3 has been asked to discharge the duties as Principal Incharge. Added to that, as rightly observed by the CAT, there is no independent post as that of Principal Incharge and there 34 are no guidelines or Rules which govern as to how the Principal Incharge has to be selected or considered. In the absence of the rules, discretion exercised by Respondent No.4 is just and proper inasmuch as it cannot be said to be illegal or arbitrary. Hence, we are of the opinion that the petitioner has not made-out any ground to interfere with the order of the CAT. The petition deserves to be dismissed.
Accordingly, the petition stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE KGR*