Rajasthan High Court - Jodhpur
Rajasthan Agriculture Uni vs Dr. (Smt.) Gita Bali & Ors on 20 January, 2011
Bench: Arun Mishra, Prakash Tatia
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
Raj.Agri.University,Bikaner Vs. Dr.Zabar Singh Solanki
(1) D.B.CIVIL SPECIAL APPEAL NO.382/2002
Raj.Agri.University,Bikaner Vs. Dr.Gita Bali
(2) D.B.CIVIL SPECIAL APPEAL NO.470/2002
State of Rajasthan Vs. Dr.Zabar Singh Solanki
(3) D.B.CIVIL SPECIAL APPEAL NO.118/2003
State of Rajasthan Vs. Dr.Gita Bali
(4) D.B.CIVIL SPECIAL APPEAL NO.516/2003
UNDER SECTION 18 OF
THE RAJASTHAN HIGH COURT ORDINANCE, 1949.
Date of Judgment: January 20, 2011
P R E S E N T
HON'BLE THE CHIEF JUSTICE MR.ARUN MISHRA
HON'BLE MR.JUSTICE PRAKASH TATIA
Mr.M.S.Singhvi, for the appellant.
Mr.M.Mridul Sr.Adv. assisted by
Mr.P.S.Chundawat, for the respondents.
Mr.Anand Purohit, Addl.Advocate General.
REPORTABLE BY THE COURT :
Heard. The intra Court appeals put in question the sustainability of the order dated 12.4.2002 passed by the Single Bench directing that the benefit of the Career 2 Advancement Scheme be given to the Research Assistants, designated as Lecturers, counting the services with effect from the date they were designated as Lecturers or Assistant Professors.
The facts which are not in dispute reflect that the respondents - Research Assistants were appointed in the erstwhile University of Udaipur, renamed as Mohan Lal Sukhadia University & later-on after bifurcation, it was named as Rajasthan Agricultural University, Bikaner, hereinafter referred-to as "the Agricultural University", and governed by the Rajasthan Agricultural University Bikaner Act, 1987, hereinafter referred-to as "the Act of 1987". Their appointments were made in the pay scale of Rs.300-600 prevailing at the relevant time. The University of Udaipur designated them as Lecturers with effect from 7.9.1977 consequent upon amendment made in Statute 47(i). It was notified that teachers holding the post of Jr. Lecturers or equivalent post, are designated as Lecturers. Consequently, the respondents came to be designated as Lecturers. They were also later-on re-designated as Assistant Professors and it is not in dispute that they were drawing the same pay scale as admissible to other faculty members such as 3 Lecturers/Assistant Professors. The Govt. of India, Ministry of Human Resource Development (Department of Education) vide Communication dt.22n d July, 1988 decided to make the revision of the pay scales of teachers in Universities and Colleges with effect from 1.1.1986. The Govt. of India notified Career Advancement Scheme for Lecturers and every Lecturer was to be placed in a senior scale of Rs.3000-5000 if he completed eight years of service after regular appointment. The Govt. of Rajasthan took a decision to implement the Career Advancement Scheme notified by the Govt. of India vide letter dt.22.7.1988. Consequent thereto, the Board of Management of the Agricultural University in its meeting held on 24.11.1988 resolved to give revised UGC Pay Scales to the Lecturers and Research Assistants. The Board of Management further resolved to designate Research Assistants and Lecturers as Assistant Professors. However, it was decided that persons appointed as Assistant Professors, will rank senior to the Lecturers/Research Assistants, so designated as Assistant Professors. The resolution of the Board of Management was again reviewed by the Board in its meeting held on 28.1.1989 and the same was confirmed. Pursuant thereto, Notification dated 4 4/6.5.1989 was issued to the effect that all duly selected Lecturers/Research Assistants will be designated as Assistant Professors with effect from 1.1.1973.
The Board of Management of the Agricultural University vide Resolution No.245 dt.8t h August, 1990 approved the Rules for implementing the Career Advancement Scheme for Assistant Professors. The Agricultural University vide letter dt.22.11.1990 notified the Rules for implementing the Career Advancement Scheme for Assistant Professors in the University. However, on the request being made to the State Government to grant approval of the Resolution of the Board of Management dt.24.11.1988, it requested the Vice Chancellor that the Resolution of the Board of Management dt.24.11.88 be rescinded. However, the fact remains that in anticipation of the approval, the Agricultural University had issued the requisite orders. Thereafter, the Board of Management in its meeting dt.29.7.1991 resolved that if any Research Assistant or Lecturer had been selected as Assistant Professor by the Statutory Selection Committee, then his service period shall be counted from the date when he was duly 5 selected by the Statutory Selection Committee as Assistant Professor. Later-on, the Dy.Secretary, Agricultural Department of the Govt. of Rajasthan, wrote a letter dt.27.5.1992 requesting the Agricultural University to amend the Resolution of the Board of Management dated 29.7.1991 and it was requested that the order by which Research Assistants/Lecturers were designated as Assistant Professors be rescinded and the benefit of Career Advancement Scheme be extended only to those Assistant Professors, who were directly selected after regular selection by the Statutory Selection Committee and not to the ones, who were designated as Assistant Professors. The recommendations which were made by the Agricultural University as well as by the Board of Management were not accepted by the State Government. Thus, the Research Assistants, who were designated as Lecturers and later-on re-designated as Assistant Professors, were deprived of the benefit of the Career Advancement Scheme. Hence, they preferred the writ petitions assailing the action.
Earlier, the matters of Research Assistants travelled to this Court in a writ petition to claim that a 6 Research Assistant is employed for the purpose of conducting and guiding research and must, therefore, be regarded as a teacher for the purpose of Section 2(j) of the Udaipur University Act, 1962. The said relief was granted by the Single Bench, against which the Special Appeal was preferred by the State of Rajasthan against Dr.Nihal Singh reported in 1981 WLN(UC) 438. The Division Bench of this Court held that the Research Assistant is employed for the purpose of conducting and guiding research and must, therefore, be regarded as a teacher for the purpose of Section 2(j) of the Udaipur University Act, 1962. The Division Bench of this Court held that as the post of Research Assistant was included in the post of Lecturer, the Research Assistant must be held to be entitled to the same benefit in the matter of revision of pay scale, which has been extended to the lecturers of the University. The benefit was accordingly extended. Thereafter, the matter travelled to the Apex Court in Special Leave to Appeal No.1732/1982, which was dismissed affirming the decision of the Division Bench of this Court. The review petition was also moved, which was dismissed on Nov.8, 1984 by the Apex Court. Subsequently, a fresh batch of Special Leave Petition was filed before the Apex Court. 7
In the case of State of Rajasthan vs. Rajendra Kumar, the Apex Court held that the Research Assistants of Udaipur University were entitled to the UGC recommended pay scales for the Lecturers. The relief granted by this Court was affirmed. The review application was preferred, which was decided by the Apex Court on April 25, 1985. The Apex Court clarified that the Research Assistants & Lecturers are separate and distinct cadre. The only thing common is the scale. In order to obliterate any future difficulty in this behalf, the Apex Court ordered that the Research Assistants and Lecturers form separate cadres and they need not be brought on same cadre and common seniority list only on the ground that they enjoy the same pay scale. The benefit which was extended, was not disturbed by the Apex Court. The Apex Court has dealt with the matter of scale alone. Any other matter has neither been accepted nor rejected. They were kept open to be dealt with in the appropriate proceedings.
The Single Bench by the impugned order held that the respondents are entitled for the benefit of grant of Senior Scale under the Career Advancement Scheme 8 from the date when they completed eight years of service taking into account the services rendered by them as Lecturers or Assistant Professor after designation as such. They shall also be entitled for consequential benefits. However, the seniority shall not be given to them over the Assistant Professors appointed directly and they will rank junior to the Assistant Professors so appointed. Aggrieved by the decision rendered by the Single Bench, these intra Court appeals have been preferred.
Mr.M.S.Singhvi, learned counsel appearing on behalf of the Agricultural University, has submitted that merely by designating the Research Assistants as Lecturer and thereafter as Assistant Professor, they could not have been granted the benefit of Career Advancement Scheme. This benefit was available only to the Lecturers, who were directly appointed on the post of Assistant Professor under the Rajasthan Universities Teachers and Officers (Selection for Appointment) Act, 1974, hereinafter referred-to as "the Act of 1974" & had completed eight years of service. He has further submitted that definition of the teacher as contained in Sec.2(ix) of the Act of 1974 cannot be said 9 to be applicable to the Research Assistants and considering the non-obstante clause contained in Sections 3 and 12 of the Act of 1974, the relief of Career Advancement Scheme could not have been accorded to the respondents by granting similar pay scales. As the Cadre remains separate and below the Assistant Professors, they were not entitled to the benefit of Career Advancement Scheme floated for the benefit of Lecturers/Assistant Professors.
Mr.Anand Purohit, Additional Advocate General, has supported the submissions made by Mr.M.S.Singhvi, learned counsel appearing on behalf of appellant- University.
Mr.M.Mridul Sr.Advocate, assisted by Mr.P.S.Chundawat, appearing on behalf of the
respondents, has contended that Research Assistant is also a teacher under the Act of 1974 and in the previous round of litigation, it has already been held that they are Lecturers under Sec.2(j) of the Udaipur University Act, 1962. In view of the clarification, which has been issued of the Career Advancement Scheme on November 27, 1990 by the University Grants 10 Commission, there is not an iota of doubt that the persons, who were serving as Lecturers or on other equivalent posts, were entitled for the benefit of the Career Advancement Scheme. When the Research Assistants have been designated as Lecturers and thereafter as Assistant Professors, they cannot be deprived of the benefit available to the Lecturers. It is not provided in the Career Advancement Scheme that the benefit is not available to such incumbents, whose posts have been designated as Lecturers. The decision was rightly taken by the Board of Management of the Agricultural University to accord the benefit of Career Advancement Scheme, which was unnecessarily objected-to by the State Government and later-on, the decision has been illegally reviewed under the directions of the State Government by the University. The action was in contravention of the directions and the relief granted in the previous round of litigation in which they were held entitled for the benefit of revised pay scales of Lecturers.
It is not in dispute that the Research Assistants were designated as Lecturers way back in the year 1977 by the concerned University vide notification 11 dt.7.9.1977. The said Notification is quoted below:
"Consequent upon amendment made in Statute 47
(i) teachers appointed substituting Jr. Lecturers by Lecturers, it is notified that holding the post of Jr. Lecturers or equivalent post in research and extension are designated as Lecturers in pursuance of this office Notification No.F.2(3) Act. & St./M/5518 5688 dated July 2, 1974."
It is apparent from the aforesaid Notification that the Research Assistants were holding the equivalent posts of Lecturer and they were designated as Lecturers. Thus, their rights were recognized in the previous round of litigation not only by this Court but by the Apex Court also with respect to revision of pay scales as Lecturers.
The Career Advancement Scheme (Annex.P/5) was issued by the Govt. of India, Ministry of Human Resource Development (Department of Education) vide letter dt.22 n d July, 1988, which provided for the career advancement. Clause 13 of the said Scheme is quoted below:
"Career Advancement
13. Every Lecturer will be placed in a senior scale of Rs.3000-5000 if he/she has:12
(a) completed 8 years of service after regular appointment, with relaxation as provided in para 12 above;
(b) participated in two refresher course/ summer institutes, each of approximately 4 weeks' duration or engaged in other appropriate continuing education programmes of comparable quality as may be specified by the UGC;
(c) consistently satisfactory performance appraisal reports."
The University Grants Commission issued a D.O.No.F.1-6/90 (P.S.Cell) on January 29, 1990 to the following effect:
"...The Commission in its meeting held on 18t h December, 1989 agreed that the experience of a person before appointment as a lecturer in the university or college, in equivalent grade in other universities/colleges and the National Laboratories or R&D Organisations (CSIF/ICAR, DRDO, UGC etc.) and UGC Research Scientists be counted as qualifying service for placement in the senior scale/ selection grade."
It was clarified by the University Grants Commission that previous experience of a person before appointment as a lecturer in the university or college, in equivalent grade in other universities/colleges and the National Laboratories or R&D Organisations (CSIF/ICAR, DRDO, UGC etc.) and UGC Research 13 Scientists, should be counted as qualifying service for placement in the senior scale/ selection grade. Only the incumbents, who were appointed on adhoc basis or in a leave vacancy of less than one year duration, were to be excluded. It is not in dispute that the respondents were designated as Lecturers and they were regularly appointed under the Udaipur University Act, 1962, which was applicable to them when they were appointed. It is not the case of adhoc appointment or leave vacancy. It is also not in dispute that they were designated as Lecturers and thereafter as Assistant Professors. Their Cadre was different but the fact remains that they were designated Lecturers and Assistant Professors and such Lecturers cannot be excluded from the benefit of Career Advancement Scheme, which has been made available to the Lecturers under the Scheme floated by the Govt. of India and as clarified by the University Grants Commission. The Single Bench has directed the benefit to be given of the period of eight years, when they were designated as Lecturers. It is also not in dispute that they have been regularly appointed and they have completed eight years of service and they fulfill other requirements also of the Career Advancement Scheme. 14 When the benefit has been granted by computation of such service rendered as in the equivalent grade/scale and also to the UGC Research Scientists & various other posts as mentioned in the Communication of the UGC dt.27.11.1990 (Annex.P/9), we find that the submission made by the learned counsel appearing on behalf of the Agricultural University cannot be accepted at all. The benefit was rightly extended initially by the Board of Management by passing two resolutions and on unholy objection raised by the State Government, these resolutions were illegally rescinded/reviewed. In our considered opinion, the Single Bench is justified in extending the benefit of which the respondents were arbitrarily deprived of.
The Apex Court in Gopal Krishna Sharma vs. State of Rajasthan, AIR 1993 SC 81, has laid down that Research Assistants are entitled to the same pay scales as that of the Lecturers. Once they have been designated as Lecturers, they cannot be deprived of the benefit of the Career Advancement Scheme. It is nowhere provided that the Lecturers of a particular Cadre are only entitled for the benefit of the Career Advancement Scheme. There is no distinction made in 15 the Career Advancement Scheme in that regard. The designation given to the Research Assistants as Lecturers and thereafter Assistant Professors has to be given full effect-to in the matter of payment of scale and such other benefits as available under the Career Advancement Scheme. We are aware of the situation that the Cadre of directly recruited Assistant Professors is different than that of the respondents and they will not be placed above those regularly directly recruited Assistant Professors in the matter of seniority, as their seniority is separately maintained. Consequently, we find no force in the submission raised by Mr.MS Singhvi, learned counsel appearing on behalf of the Agricultural University that in case the benefit of the Career Advancement Scheme is given to the respondents, they may draw higher pay than that of directly recruited Assistant Professors. There is no question of discrimination, as the Career Advancement Scheme depends upon the fact of length of service rendered. In case a person who has rendered more service than that of freshly recruited person in a different Cadre, may draw higher pay scale and there is no room to invoke a plea of discrimination based on Articles 14 & 16 of the Constitution by such 16 incumbents, who have been appointed later-on.
In Dr.Rashmi Srivastava vs. Vikram University, (1995) 3 SCC 653, the Apex Court considered the question of direct recruits and promotees vis a vis Ex cadre promotees and benefit to be extended in the matter of Merit Promotion Scheme under the M.P. Universities Act, 1982. The Apex Court has laid down that merits promotees are not entitled to be included in the seniority list of direct recruits but for that reason, they cannot be reverted to the lower posts. They were entitled to the Merit Promotion Scheme.
In view of the aforesaid decision also, we have no hesitation to come to conclusion that the decision rendered by the Single Bench is in accordance with law.
Mr.M.S.Singhvi, learned counsel appearing on behalf of the Agricultural University, has also urged that later-on, the respondents have been directly appointed as Assistant Professors, as they knew that they were holding a different Cadre. Thus, they could not be said to be entitled for the Career Advancement Scheme available to the Lecturers and Assistant Professors, 17 directly recruited. As we have already held that direct recruitment under the Act of 1974 as Lecturers/Assistant Professors was not necessary for the purpose of benefit under the Career Advancement Scheme, the incumbents who have been designated as Lecturers/Assistant Professors, being part of the faculty, were to be treated as Lecturers, though their Cadre was separate. Merely by the fact that the respondents have been later-on directly selected as Assistant Professors, they could not be said to be disentitled for the benefit, which was available to them by virtue of the re-designated posts of Assistant Professor, which they were holding on a different Cadre.
Mr.M.S.Singhvi, learned counsel appearing on behalf of the Agricultural University, has referred to the provisions of Secs.3 and 12 of the Act of 1974.
The definition of the "Teacher" is given in Section 2(ix) of the Act of 1974 thus:
"2. Definitions.- In this Act, unless the subject or context otherwise requires,-
(ix) "Teacher" means a Professor, Reader or Lecturer of any faculty of a University and such other person, by whatever name designated by or under the relevant law, imparting instruction, or 18 conducting and guiding research or extension programmes in a University."
A bare reading of the aforesaid definition makes it clear that that "teacher" is not only a Professor, Reader or Lecturer of a University but such other person also, by whatever name designated by or under the relevant law, who is imparting instructions. The "teacher" under the Udaipur University Act as defined in Section 2(j) of the said Act is also to be treated as teacher for the purpose of extending benefit under the Act of 1974. The definition of "Teacher" under the Act of 1974 recognizes the other person also, by whatever name designated by or under the relevant law, who is imparting instruction. It does not exclude the operation of other Acts at the same time but rather recognizes it. When the concerned University designated the respondents as Lecturers in the year 1977 and thereafter re-designated as Assistant Professors, that has to be given full effect-to. We find no room to entertain the submission raised by Mr.M.S.Singhvi, learned counsel appearing on behalf of the Agricultural University, that every appointment of a teacher in any University was required to be made only under the Act of 1974. Section 3 of the Act of 1974 on 19 which he has placed reliance, deals with restrictions on appointments of teachers and officers from the date of commencement of the Act of 1974 that no teacher and no officer in any University in Rajasthan shall be appointed except on the recommendations of the selection committee constituted under Section 4 of the Act of 1974. Section 12 of the Act of 1974 contains non- obstante clause. The provisions of this Act shall have effect notwithstanding anything contained in the relevant law. The "relevant law" has been defined in Section 2(vi) of the Act of 1974, which means an enactment of the Rajasthan State Legislature establishing a University in the Rajasthan and it also includes the statutes, ordinances, bye-laws, rules, notifications or Orders made thereunder and as amended from time to time. No doubt about it that the provisions of the Act of 1974 have to prevail in case provision made but considering the definition of the teacher itself in the aforesaid Act, we find that the others, who have been appointed on regular basis under the relevant Statute enacted by the State Government, cannot be ousted. Thus, we reject the submission that in order to avail the benefit of the Career Advancement Scheme, the incumbent should have been directly 20 appointed under the Act of 1974. The Scheme itself recognizes the services rendered by the incumbents on equivalent posts by excluding appointments purely on adhoc or services rendered in leave vacancy of less than one year duration.
Resultantly, the appeals are found to be devoid of merits and they deserve dismissal. The appeals are dismissed. However, the parties are left to bear their own costs, as incurred of the appeals.
(PRAKASH TATIA), J. (ARUN MISHRA), CJ RANKAWAT JK, PS