Calcutta High Court
State Of West Bengal & Ors. vs Dr. Samiron Chakraborty And Ors. on 30 July, 1999
Equivalent citations: (1999)3CALLT39(HC)
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT
The Court
1. The instant appeal has been preferred by the State against an order of the learned single Judge dated 8th August, 1995 in C.O.No. 18644(W)/1993 whereby the authorities were directed to take appropriate steps in accordance with law to give effect to the resolution dated 4th January, 1990 within the time framed therein.
2. By the resolution dated 4th January. 1990 the executive council of the respondent University at its 109th meetings passed a resolution to the effect that appointment letter of all the candidates already recommended by the duly constituted selection committee for Merit Promotion and promotions under the career advancement programme to issue within a period of one month and the State Government be informed accordingly.
3. The writ petitioners 21 in number Readers/Professors of various departments of the respondent/University filed the writ application seeking the substantive relief of implementation of the promotions of the writ petitioners under the Merit Promotion Scheme (hereinafter referred to MPS) in terms of the resolution dated 30th June, 1989, 4th January, 1990 and 14th January, 1990.
4. In terms of the said resolution, appointments have been made in favour of 11 persons at the first instance and thereafter, six more persons whose names were recommended, were also given appointment. The petitioners, however, whose names admittedly were also recommended for appointment to the promotional post under the MPS have not been given such appointment or promotion.
5. The learned single Judge in his order under appeal noted the submissions made on behalf of the respondent/University that it had no objection to the issuance of appointment letters in terms of its resolutions and that in fact the University Authorites had sent the necessary papers to the State Government for approval and the matter is pending before the State Government of West Bengal. It was the submissions of the University before the learned single Judge that, if the approval is issued by the State Government the University would issue the appointment letters to rest of the candidates immediately.
6. The respondent/University or any of its authorities being respondent Nos. 1, 2, & 3 to the writ petition have not filed any appeal against the orders of the learned single Judge and are impleaded as respondent Nos. 22 to 24 in the instant appeal.
7. The State, though a respondent No. 4 in the said writ application, it did not file any Affidavit-in-Opposition though it was represented by its learned Advocate and has chosen to file the instant appeal.
8. The foremost contention of the appelant State is that according to the Government Orders dated July 22. 1981 and March 3, 1988 promotion to the University Teachers under the said MPS can be given only once during the entire service career of teachers and as such, there is no question of granting promotion under the MPS to any person more than once during his service career.
9. The writ petitioners who have already got promotion under the MPS in the year 1981 are not entitld to avail of the second Promotion under the said scheme, it is asserted on behalf of the appellant.
10. It is the contention of Shri Shakti Nath .Mukherjee, learned senior counsel appearing on behalf of the respondent/writ petitioners that the approval on the part of the State Government is not necessary since the West Bengal Universities (Control of Expenditure) Act. 1976 which has been referred to and was relied upon by the University authorites in its Affidavit-in-Opposition and on the basis of which it was contended that the approval of State Government is necessary and this contention which found favour with the learned Judge is on the ground that section 3(1) and its proviso has no application in the instant case of promotional appointment under the MPS. The reason for the same being that the University had adopted the MPS but the subsequent modification scheme dated 3rd March,1982 was, however, not adopted by the University.
11. It would, therefore, be necessary to examine the rival contentions in the light of Government Orders in Government Order Dated 22nd July, 1981 and the Government Order dated 3rd March, 1982.
12. By the Government Order No. 957 (6) Edn. (U). dated 22nd July, 1981 (page 48 of the paper book), the State Government on the basis of the recommendation of the University Grant Commission (UGC) intimated the Universities in the State that the Government has been pleased to approve the MPS for the Universities' Teachers w.e.f. 1st April, 1981 subject to the terms and conditions indicated therein. The approval if briefly summarised, the conditions indicated in the said Government Order dated 22nd July. 1981 are as under:
"1. Teachers in the University departments engaged in advanced teaching and research and whose contribution and achievements are such as to merit recognition may be considered for merit promotion. In the first instance, after compleating six years continuous un-interrupted sevice in their respective cadre, of which at least three years should be in the institution where the teachers concerned is being considered for such assessment and merit promotion.
2. Any teacher who has been considered and not selected for merit promotion in the initial representation could however submit his work again only after a lapse of one year.
3. Teachers interested in such assessment and consideration of merit promotions shall have to present their work to the University through their department latest by 31st December each year or date to be fixed by the University in this behalf.
4. The University shall generally take a decision before the beginning of the financial year so that such promotions can become effective from the date of the next financil year.
5. While the final selection of persons to be promoted shall be made by the University in accordance with its normal statutory procedure, it would be necessary to refer the work (to include research publications, book, reviews curricular development, teaching aids, innocation in teaching mothods. equipment development etc.) presented by the individual teachers to at least two referees in subject/discipline concerned. The referees are to be selected by the Vice-Chancellor out of a panel of names set up according to the procedure prescribed by the University for selection of teachers. The evaluation reports by these referees should be kept confidential and should be made available to the selection committee. The final selection would be based upon the evaluation comments of the referees and the opinion of the outside experts (at least two outside experts in the case of promotion to readers and three outside experts) for promotion to professors on the selection commettee."
13. By another Government Order No. 121(6) Edn. (U), dated 8/9th February, 1982 the earlier Government Order dated 22nd July, 1981 was modified by substitution of clauses 5 and 8. The substituted clauses 5 and 8 read as under:
"Clause (5) : While the final selection of persons to be promoted shall be made by the University in accordance with its normal statutory procedure, it would be necessary to refer the work (i.e. research publications, books, reviews, curricular development, teaching aids, innovation in teaching methods, equipment development, etc.) presented by the individual teacher to at least two referees in the subject/discipline concerned. The rerefees are to be selected by the Vice-Chancellor according to the procedure prescribed by the University for selection of experts. The evalution reports of these referees should be kept confidential and made available to the selection committee. The final selection would be based upon the evaluation comments of the referees and the decision of the Selection Committee.
Clause (8) : Net more than one-third of the numbers of total permanent position of Lectures or Readers within a department may hold such merit promotions at next higher level at any given time.
Provided that if the number of candidates of outstanding merit recommended for promotion by the selection committee under the aforesaid scheme is in excess of the ceiling fixed under this clause the University may refer such cases to the State Government along with the recommendations of the selection committee for sanction of additional post."
14. It must be stated here that both aforesaid Government Orders dated 22nd July, 1981 and 8/9th February. 1982 have been issued with the concurrance of the Finance Department of the Government of West Bengal.
15. Yet another Government Order being No. 232(6) Edn.(U), dated 3/5th March, 1982 (Page 109 of the Paper Book) issued under the directions of the Governor was as regards eligibility for promotion under the MPS for Universities Teachers. Certain conditions were prescribed. In effect the following two conditions have been prescribed by the said Government Order dated 3/5th in respect of the MPS. They are :
"(i) A Teacher shall be eligible for promotion under this Scheme provided he has not get any promotion so far in his service career under any scheme; and
(ii) That a teacher shall be eligible for promotion under this scheme approved in terms of Government No. 957(6) Edn. (U), dated 22.7.81 only once during his service career."
16. It must be noticed here that the respondent/University at its 60th meetings held on 13/16th March, 1982, adopted the MPS for the teachers of the University as per the terms and conditions "laid down in G.O. No. 957(6) Edn.(U), dated July 22, 1981 and as modified by G.O. No. 121(6) Edn. (U), dated Februarys. 1982 "(Page 52 of the Paper Book).
17. Annexure 3 appended to the said resolution adopted by the said University is the University Ordinance being ORD 1(NPSTU) to Ordinance 6(NPSTU). The said ordinances. It is directed, shall come into force at once. The said ordinances, inter alia, prescribe issuing of notice by the Registrar to candidates seeking promotion from out of the eligible teachers, the Constitution of selection committee, manner of consideration of the applications that may be received and the points with the corresponding weightage to be given and allied matters.
18. What is significant, however, is and as submitted by Mr. Shaktinath Mukherjee, learned senior counsel on behalf of the respondent/ writ petitioners is that the G.O. dated 3/5th March. 1982 upon which much reliance has been placed by the State was not adopted by the University and the two conditions referred to (supra) in the said G.O. dated 3/5th March. 1982 do not find place in the said resolution of the University or in the Ordinances.
19. The question therefore that arises for consideration is whether the G.O. dated 3/5th March, 1982 which introduce the two conditions referred to (supra) not having been incorporated in the ordinances whether they would have an overriding effect over the ordinances issued by the University on 13/16th March. 1982.
20. By West Bengal Act XL of 1981, the Kalyani University Act. 1981 was enacted. It received the assent of the Governor and was published in the Gazette on 22nd December, 1981. This was an Act to provide for the reconstitution of the University of Kalyani and for certain matters in respect thereto and enacted therewith.
21. By this Act, 1981, sub-section 2 of section 1 laid down that, that section and section 55 shall come into force at once and remaining Provisions of the Act, 1981 shall come into force on such date or dates as the State Government may by notification appoint.
22. The provisions contained in section 55 of the said Act. 1981 are transitory provisions and deal with the repeal of the Kalyani University Act, 1960. Sub-sections 5, 7 & 9 are relevant for the purpose of the matter on land and are extracted herein for ready reference.
Sub-section 5 : The State Government shall, by notification in the Official Gazette, appoint a date and on and from such date the court, the Executive Council, the Faculty Councils for Post Graduate and Undergraduate studies and the Boards of studies shall commence to exercise their respective functions and the statutes, the Ordinance and the Regulations of the former University as reviewed or amended under sub-section (2) shall come into force and shall be the Statutes, the Ordinances and the Regulations of the University.
Sub-section 7 : The Statutes, the Ordinances and the regulations of the University shall remain in force until new Statutes, new Ordinances and new regulations are make under the provisions of this Act.
Sub-section 9 : On and from the appointed day the Kalyani University Act. 1960 shall stand repealed and thereupon.
(a) the Statutes, the Ordinances and the Regulations of the former University shall, subject to the provisions of sub-section (5), stand repealed and all authorities or bodies of the former University shall cease to function;
(b) all Colleges and institutions affiliated to or recognised by the former University and continuing as such immdiately before the appointed day shall be deemed to be affiliated to or recognized by, the University;
(c) all Colleges or institutions of whatever kind established, maintained or managed by the former University prior to the appointed day shall be deemed to be Colleges or institutions established, maintained or manged by the University under this Act;
(d) all affairs, functions or activities of the former University including studies and examinations, commenced and in programme before the appointed day, shall be deemed to be progress as if they had been commenced by the University under this Act;
(e) all things done or deemed to have been done, and all actions taken or deemed to have been taken and all appointments made by the former University under the Kalyani University Act. 1960 shall be deemed to be things done or actions taken or appointments made by the University under this Act as if this Act had been in force when such things were done or such actions were taken or such appointments were made;
Provided that until such repeal, references to the Vice-Chancellor under the said Act shall be deemed to be references to the first Vice Chancellor under this Act."
23. Another significant provision of this Act 1981 is section 48, The provision of the section 48 had not been brought into operation at the material time when the University adopted the MRS on 13/16th March, 1982. Sub-section 3 of the section 48 of the said Act reads as under:
" Sub-section 3: An Ordinance passed by the Executive Council in the manner provided hereinbefore in this section shall be submitted to the Chancellor for assent and shall come into force on being assented to by the Chancellor and shall be reported to the court at its next meeting."
24. The Ordinance made in exercise of power under section 48 of the Act, 1981 along with other sections of the said Act. 1981 came into force only in August. 1985.
25. The respondent/University therefore continued to be governed by the Kalyani University Act, 1960 read with Kalyani University (Temporary Supersession) Act, 1978.
26. Sub-section 3 of section 20 of the Kalyani University Act, 1960 required that every Ordinance "shall, before it is given effect to, be submitted to the Chancellor and shall be modified or amended in such manner as may be suggested by the Chancellor". Section 20{4) reads as under:
Section 20(4) : the chancellor may at any time after ordinance has been made signify to the University its disallowances of such Ordinance, and from the date of receipt by the University of intimation of such disallowance, such Ordinance shall cease to have effect.
27. When contrasted and compared with sub-section 3 of section 48 of the Act, 1981 the distinguishing features of the two provisions respectively shall be apparent and obvious.
28. The Ordinance to have effect, was required under both the former Act 1960 as also by the repealing Act 1981 to be submitted to the Chancellor.
29. Under the Act, 1960 and section 20(4) thereof, the Chancellor could singnify his disallowance of such Ordinance and upon such intimation of such disallowance. Ordinance shall cease to have effect, in other words under Act i960 if the Chancellor did not signify his disallowance of such Ordinance, the Ordinance, would continue to be valid and effective.
30. Whereas, under the provisions of 1981 Act and section 48(3) thereof the Ordinance of the University shall come into force and affect when assented to by the Chancellor which shall be reported to the Court of the University at its next meeting.
31. It is, thus, clear that under the Act 1981 any Ordinance to be effective and valid the condition precedent is the assent of the Chancellor.
32. Admittedly, the Ordinance adopting the MPS in the instant case had been framed under the Act, of 1960 and before the provisions of section 48 of the 1981 Act had come into force. The objection on behalf of the State/Applellant, that the aforesaid Ordinance was not assented to by the Chancellor, our view however the same is of no material consequence. What is material is that there has been no signification of dis-allowance of the Ordinance by the Chancellor and therefore the same is valid and effective in terms of section 20(4) of 1960 Act which is applicable to the Ordinance in question.
33. Consequently, the Government Order dated 3/5th March, 1982 which is the foundation of the appelant's case, we are of the view that the same constitutes only an administrative or executive instruction which cannot have an overriding effect over the Ordinance which has the statuory force.
34. It is not disputed that the respendents/petitioners have been considered under the MPS for University Teachers and have been recommended by the selection committee in accordance with the Ordinance referred to (supra).
35. This takes us to the next contention whether by virtue of the said selection and the promotion of the respondent/writ petitioners involves the sanctioning of the additional posts in the cadre of the promotional post to which the writ petitioners have been promoted and the same, unless approved by the State Government, can not be given effect to.
36. The Supreme Court in Dr. Rashmi Srivastava v. Vikram University & Ors, though in a different context but in the light of the MPS observed as follows.
"..... While the promotees under the merit promotion scheme stand outside the cadre and fill no posts as such, since no post are created. The promotions given to them are purely personal and the posts to which they are upgraded do not survive their service career. The posts vanish with the incumbent person like the shadow vanishing with the substance. Such a promotee fills up no vancancy in the promotional avenue since no post is available by promotion."
It has been, further, observed that :-
"...... The promotee Readers and Professors are appointed not in the cadre post but under an entirely different scheme, namely merit promotion scheme. Even under this scheme, no posts as such are created. Those selected under the scheme are given personal posts which cease with their employment. In fact, the posts from which they are promoted do not become vacant and none can be appointed to the said posts while they hold the higher posts."
37. The ratio of the Judgment in Dr. Rashmi Srivastava's case appears to be that promotees under the merit promotion scheme stand outside the cadre and fill no posts. The promotee fills up no vacancy in the promotional avenue since no post is available by promotion and by virtue of the promotion under the scheme, no post as such is created. It is mere upgradation of a personal nature which does not survive the service career of the incumbent.
38. The question, however, is whether the writ petitioners as also the executive council of the respondent University has treated such promotions under the scheme in the like manner, as above, in other words by virtue of the promotion under the merit promotion scheme would the petitioners so upgraded, would be treated as ex-cadre, that is to say, outside the cadre to which they have been promoted. The answer to this querry would depend upon the interpretation of the Act and the Rules as also the Ordinance and Statutes governing the same as may have been made or adopted by the respondent University.
39. We find that neither the Act nor the Statutes or Ordinance framed or adopted by the respondent University provide for ex-cadre post. On the contrary, proviso to clause 8 of the scheme adopted by the respondent University lays down that if the number of candidates recommended for promotion by the selection committee under the MPS is in excess of the ceiling limit, the University has to refer such cases to the State Government for sanction of additional posts. The implication therefore, is that any promotions under the scheme are to a post in the cadre to which an incumbent is promoted. The promoted post is not an ex-cadre post. For promotees in excess of the ceiling limit of 1/3rd in that category, additional posts have to be sanctioned.
40. The question of sanctioning of additional posts can only arise when promotion under such MPS have been made in excess of the 1/3rd ceiling quota. This has to be understood in the context of the financial implications and the expenditure to be incurred in connection with such merit promotions.
41. Looked at from another point of view if the merit promotions are made within the ceiling prescribed in each category, the question of approval of the State Government or even making reference of such cases to the State Government does not arise. Only when the merit promotions are made in excess of the ceiling fixed in the concerned category that the University is required to refer such cases to the State Government for sanction and that is also the purport and intent of the State Government G.O. dated 8/9th February, 1982 which modified the scheme by G.O. dated 22nd July, 1981.
42. Whatever doubt existed as to the question whether two promotions under the MPS of the UGC can be granted the same stands clarified by the letter dated 1st March, 1999 being F.2-3/97(PSJ of the University Grants Commission, Bahadurshah Zafar Marg, New Delhi 110 002 addressed to the Vice-Chancellor. Calcutta University, Calcutta - 700 073 wherein it has been clarified "that a Teacher who opted for Merit Promotion Scheme in writing in 1987 can be granted two promotions, if he/she is found eligable and fulfills other conditions on the Merit Promotion Scheme.
43. Under the MIS as adopted by the respondent/ University not more than 1 /3 of the number of the total permanent posts of Lecturers or Readers within a Department may hold such merit promotions at the next higher level at any given time. Proviso to Clause 8 of the said scheme states that if the number of candidates of outstanding merit recommended for promotion by the selection committee under the aforesaid scheme is in excess of the ceiling fixed under Clause 8, the University may refer such cases to the State Government along with recommendations of the selection committee for sanction of additional posts.
44. Clause -19 of the scheme provides for the expenditure to be borne by the Universities from the grant that may be available from University Grants Commission (UGC| in respect of the expenditure involved in making such merit promotions within l/3rd number in each category.
45. In Professor S.A. Siddiqui v. Professor M. Majid Khan & Ors., while dealing with a similar merit promotions scheme in the light of the provisions of the Aligarh Muslim University Act. 1920 and the Statutes framed thereunder, the Supreme Court while considering the question in that case whether those promoted under the MPS qua those appointed against open post belonged to different cadres, the Supreme Court held that they have to be treated as belonging to the same cadre though having been promoted by different modes.
46. Rashmi Srivastava (Dr.) case (cited supra) was notified by the Supreme Court and was distinguished in the light of the provisions of the Aligarh Muslim University Act, 1920 and Suman Agarwal (Dr.) v. Vice-Chancellor in the following terms :
"In the case of Suman Agarwal(Dr.) v. Vice-Chancellor this court considered the same question of a person directly recruited as a Reader and a person promoted as a Reader under the Merit Promotion Scheme. The Court rejected the contention that a Reader appointed by personal promotion was not a member of the cadre of Readers, on the basis of the provisions of the U.P. State Universities Act, 1973. Distinguishing the case of Rashmi Srivastava this Court said that under the Scheme of section 31 A(1) of the U.P. State Universities Act, 1973 read with Statute 17.05-B and Statute 11.12-B Clause 6, a personal promotee gets berth through statutory force under section 31 -A( 1) and the post held by the promotee becomes a temporary addition to the sanctioned cadre occupied by direct recruits. In the case of a personal promotion, so long as the candidate holds the post, the post remains in the cadre. It ceases with the ceassation of the service of the holder of the post. Nevertheless, the post of a promotee is a temporary addition to the cadre strength. Rules for inter se seniority have also been provided as between direct recruits and merit promotees. The Court said that the candidates from two streams fused into the relevant cadre of Professor or Reader. The same is the position here looking to the provisions of the Aligarh Muslim University Act and the Statutes."
47. In the instant case the ratio of the decision of the Supreme Court in Rashmi Srivastava (Dr.) v. Vice-Chancellor case would not be applicable for the same reasons as in Suman Agarwal (Dr.) v. Vice-Chancellor, .
48. Neither the University Act Statute or Ordinance framed or adopted by the University provide for these appointed under MPS to be treated for any purpose different from those selected by promotion to the general posts. There is nothing in the Acts, Statutes or Ordinance of the respondent University whereby it can be said that those promoted under the MPS are ex-cadre i.e. to say fall outside the cadre of the post to which they have been promoted. The promotee under the MPS becomes a temporary addition to the sanctioned cadre, nevertheless the post of the promotee under the MPS would be a temporary addition to the cadre strength and as held by the Supreme Court in Suman Agarwal(Dr.) v. Vice-Chancellor the candidates from two streams fuse into the relevant cadre of Professer or Reader. The same appears to be the position under the provisions of the Kalyani University Act. 1960 and the Ordinance referred supra.
49. In the light of the above it has now only to be assertained whether the promotion of the petitioners in the instant case is within the ceiling fixed under Clause 8, viz. 1/3 number in each category.
50. If the promotions of the petitioners are within the ceiling limits, the question of seeking approval of the State Government does not arise and the respondent/University can implement its decision with respect of the promotions of the petitioners and the expenditure in relation thereto shall be borne by the University from out of the grant that may be available from the UGC.
51. However, if the promotions, are in excess of the said ceiling limit then necessarily the reference made to the State Government would require to be considered by the State for sanctioning of additional posts, which shall be temporary addition to the cadre strength. For the reasons aforesaid, the order of the learned single Judge dated 8th August, 1995 is modified and the writ appeal is allowed in part with direction to the respondent/University to consider the case of the petitioners in the light of the observations herein above as to whether the promotions are within the ceiling limits of 1/3 and if, they are so within the said ceiling limits then the respondent/University shall take appropriate steps for implementation of the resolution of the Executive Council dated 4th January, 1990 within the period of one month from the date hereof.
52. However, if the, respondent/University comes to the conclusion within the time frame stipulated above that the promotions are in excess of the ceiling limits of 1/3 in the respective cetegory then the respondent/ University shall refer the case within one week after the time stipulated above to the State whereupon the State shall consider the matter with respect to according approval and/or sanctioning additional posts and pass appropriate orders thereon within two months thereafter and communicate the same to the respondent/University within one week thereafter.
With the directions as above the appeal is accordingly disposed of, however, in the facts and circumstances of the case within costs.
S.B. Sinha, A.C.J.
53. Appeal disposed of