Madhya Pradesh High Court
Dr.Anil Choubey vs The State Of Madhya Pradesh Judgement ... on 19 September, 2013
1 WP. No 17433/2007(S)
HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT AT JABALPUR
SB: Hon'ble Shri Justice Sujoy Paul
Writ Petition No.17433/2007 (S)
Dr. Anil Choubey
Versus
State of M.P. and another
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Shri V.S. Shroti, Sr. Advocate with Shri Johri, Advocate for the
petitioner.
Shri Sanjay Dwivedi, Govt. Advocate for the respondents/State.
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ORDER
( 19/09/2013) By filing this petition under Article 226 of the Constitution, the petitioner has assailed the order Annexure P/9 dated nil/December, 2007.
Brief facts necessary for the adjudication of this matter are as follows:
2. The petitioner was initially appointed as lecturer on 08.09.1972.
The post of lecturer was re-designated as Asstt. Professor. The petitioner became Asstt. Professor in subject of Military science. The UGC introduced the pay scales which were made applicable to the teachers in collegiate education. The earlier pay scales were revised as under:
1. Lecturer 2200-4000
2. Lecturer (Senior Scale) 3000-5000
3. Lecturer (Selection Grade) 3700-5700 These pay scales were given w.e.f. 01.01.1986.
3. Petitioner was given the senior scale of 3000-5000 w.e.f. 01.01.1986. The petitioner was given selection grade vide Annexure P/4 on 25.08.1994 w.e.f. 12.09.1988 in the scale of Rs.3700-5700.
2 WP. No 17433/2007(S) The petitioner was also promoted from the post of Asstt. Professor to the post of Professor by order dated 1st September, 1992 (Annexure P/5). Shri V.S. Shroti, learned senior counsel for the petitioner submits that the impugned order Annexure P/9 came as a bolt from blue, whereby petitioner was not only reverted, the senior scale, selection grade and promotion on the post of Professor were taken away. Thus, being aggrieved by the impugned order the petitioner has filed the present petition.
4. Shri Shroti, Sr. Advocate for the petitioner submits that the petitioner was eligible to be considered for grant of senior scale and selection grade. His case was considered by a duly constituted screening committee. The said committee found him suitable in all respect and therefore, by Annexures P/3 and P/4 he was given senior scale and selection grade respectively. Since petitioner was enjoying senior scale and selection grade, he became eligible for promotion as per statutory recruitment rules. A duly constituted DPC has recommended his name for the post of Professor. By drawing attention of this Court on Annexure P/2 (scheme of revision of pay scales and fixation of pay and other measures for maintenance of standards in higher education) (hereinafter called as 'scheme') it is contended that as per the scheme, method for Career advancement is prescribed in Clause 10. Procedure mentioned in the explanation appended to clause 10 was fulfilled in the case of the petitioner and only thereafter he was given the senior scale and selection grade respectively. Criticizing the order impugned, it is contended that this order is liable to be interfered with for the following reasons:
1. Requirement of scheme is directory in nature and therefore, non-fulfillment of its condition 10(b) cannot result into taking away benefits of senior scale and selection grade.
2. Respondents relaxed and extended the requirement of completing refresher and orientation course from time to time. The said extension continued till retirement of the petitioner.
3. Petitioner's subject is Military Science and respondents never conducted any refresher and orientation course in the said subject in his entire career.
3 WP. No 17433/2007(S)
4. The petitioner was subjected to discrimination and similarly situated teachers who suffered from the same deficiency are still enjoying benefits of senior scale, selection grade and promotion.
5. Lastly, it is submitted that after unreasonable delay of several years, said action is impermissible and wholly capricious and arbitrary in nature.
6. Principles of natural justice were not followed before passing Annexure P/9 and in absence thereof, impugned order which entails civil consequences is liable to be axed.
5. Per Contra, Shri Sanjay Dwivedi, learned Govt. Advocate supported the impugned order and submits that the scheme is mandatory in nature. The petitioner, admittedly, has not participated in two refresher and orientation courses nor he was engaged in any appropriate continuing education programmes of comparable quality, as specified by the UGC. Thus, he does not fulfill the minimum eligibility condition for grant of said scale and therefore, no fault can be found in the action of respondents. He submits that principle of natural justice has no role to play in the present case because non grant of opportunity has not caused any prejudice to the petitioner. He further submits that so far the ground of discrimination is concerned, as per para 6 of the return, it is clear that the action against the similarly situated employee is in the pipeline. Learned Govt. Advocate also relied on statutory recruitment rules, namely, M.P. Educational Services (Collegiate Branch Recruitment) Rules, 1990. (for brevity "Rules")
6. By drawing attention of this Court on relevant schedule, it is contended that participation in two refresher courses / summer institutes for a period of four weeks is mandatory and statutory condition for promotion. Petitioner, admittedly does not have this requisite qualification and therefore, respondents have rightly issued Annexure P/7 which does not warrant any interference by this Court.
7. Shri Shroti, learned senior counsel relied on AIR 1989 SC 1133 ( State of Maharashtra Vs. Jagannath Achyut Karandikar) (para 9 and 4 WP. No 17433/2007(S)
10), 1995 (2) SCC 377 (M.S. Usmani and others Vs. Union of India and others) (para 8) and 2001 (9) SCC 261 ( M.A. Hameed Vs. State of A.P. Another). He also relied on 1998 JLJ 98 (Prabhu Dayal Pandey Vs. M.P. State Agriculture Marketing Board and another) to bolster his submission that administrative decision cannot pass litmus test of fairness and reasonableness when it sought to take away the benefits after unreasonable period. He submits that petitioner was given benefits in accordance with law with effect from 1986-1988 and, after 21 years, by Annexure P/9 it cannot be taken away. It is argued that the employee / petitioner cannot arrange or organize the refresher and orientation course. The course has to be organized by the respondents. If respondents had organized the course and petitioner did not participate in the same, the matter would have been different.
In the present case, he submits, that undisputedly, respondents have not conducted any course in the subject of Military Science. Thus, he cannot be blamed for not participating in the same. It is further contended that petitioner was research person and he delivered more than 90 lectures in staff colleges. He further submits that attending lectures is easier than delivering the same. Petitioner's performance and record was never doubted and therefore, action of respondents in passing Annexure P/9 is illegal, arbitrary, unjust and unreasonable in nature.
8. I have heard learned counsel for the parties and perused the record.
9. Before dealing with the rival contentions, it is apt to quote relevant clause of the scheme. Clause 10 and its explanation reads as under:
Career Advancement
10. Every Lecturer will be placed in a senior scale of Rs.3000-5000 if he/she has;
(a) completed 8 years of service after regular appointment, with relaxation as provided in para 9 above:
(b) participated in two refresher courses / 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;
5 WP. No 17433/2007(S)
(c) Consistently satisfactory performance appraisal reports.
Explanation All Lecturers in the existing scale of Rs.700-1600, who have completed 8 years of service on 01.01.1986 will be placed through a process of screening / selection as indicated in para 19 below, in the scale of Rs.3000-5000. The benefit of service provided in para 9 will be available for the initial placement also.
11. Every Lecturer in the Senior scale will be eligible for promotion to the post of Reader in the scale of pay of Rs. 3700-5700 if he / she has;
(a) completed 8 years of service in the senior scale, provided that the requirement of 8 years will be relaxed if the total service of the Lecturer is not less than 16 years.
(b) obtained a Ph.D. Degree or an equivalent
published work.
(c) made some mark in the areas of scholarship and research as evidenced by self-assessment, reports of refrees, quality of publication, constitution to educational renovations, design of new courses and curricula, etc.
(d) participated in two refresher courses/summer institutes each of approximately4 weeks' duration or engaged in other appropriate continuing education programmes of comparable quality as may be specified by the UGC, after placement in the Senior scale; and:
(e) Consistently good performance appraisal reports.
10. Shri Shroti, Sr. Counsel submits that aforesaid is directory condition whereas Shri Sanjay Dwivedi, Govt Advocate submits that it is a mandatory condition. It is apt to see that State Government later on issued further circulars on the subject of grant of senior scale and selection grade. By issuing order dated 22 September, 1992 it was observed that the State Government expects that all the teachers must have completed requisite two refresher courses. It is followed by the circular dated 31st July, 2010. Relevant portion of Annexure P/13 (page 58) reads as under:
bu osruekuksa ds vk/kkj ij cus fu;e 1990 esa ykxw gq;s gSA fo'ofo| ky; vuqnku vk;ksx }kjk vuq'kaflr osrueku fnukad 17-06-1987 dks 6 WP. No 17433/2007(S) vf/klwfpr fd;s x;s FksA ijUrq bUgsa fnukad 01-01-1986 ls ykxw fd;k x;kA ;g iz'u vfu.kZr Fkk fd ofj"B@izoj Js.kh osrueku esa LFkkuu gsrq iqu%ppkZ ikB~;dzeksa dh ck/;rk dc ls ykxw dh tk,A 'kklu }kjk bl lEcU/k esa fuEukuqlkj fu.kZ; fy;k x;k gS] ftu f'k{kdksa dks izoj @ofj"B Js.kh osrueku fnukad 16-06-1987 ds igys gqvk gS mudks iqu'ppkZ ikB~;dzeksa ls NwV nsrs gq, mUgsa mudh ik=rk ds fnukad ls o"kZ 1986 ls ykxw osruekuksa esa ofj"B@izoj Js.kh osrueku ns fn;k tk;saA This circular shows that the teachers who were entitled for senior/ selection grade before 17.06.1987 became entitled to get relaxation from participating in refresher course. It is followed by circular dated 7th September, 2000 Annexure P/14 relevant portion reads as under:
**vr% iwoZ esa fn;s x;s ;g funsZ'k] fd ;fn fdlh f'k{kd dks izoj @ ofj"B Js.kh osruekuksa essa LFkkuu lanfHkZr Kkiu esa fn;sa funsZ'kksa ds foijhr iqu'p;kZ @ ;w-th-lh- }kjk ekU; fd;s x;s ikB~;dzeksa dks iw.kZ fd;s fcuk fn;k x;k gks rks ,sls izdj.kksa dh leh{kk dh tk;s vkSj bu funsZ'kksa esa foijhr dksbZ LFkkuu gqvk gks vkSj vf/kd jkf'k dk Hkqxrku fd;k x;k gks rks mldh olwyh dh tk;s] dks LFkfxr fd;k tkrk gSA** A bare perusal of this instruction shows that the department kept the recovery in abeyance in cases where benefit of senior / selection grade was given to teachers without completion of refresher course. It is further mentioned that such matters be sent to the Office of Commissioner and screening committee will examine the same. Interestingly, another circular 13th February, 2001 is issued wherein the Government took the decision which reads as under:-
**jkT; 'kklu }kjk bl laca/k es iqufoZpkj dj vufUre fu.kZ; fy;k x;k gS] fd pwfd izoj Js.kh osrueku 2 iqu%'p;kZ ikB~;dze iw.kZ ugha djus ij Hkh ns fn;k x;k gS] ,slh fLFkfr esa lHkh lgk;d izk/;kidksa dks 2 o"kZ dk le; fn;k tkos] ftlls fd os bl vof/kd esa 2 iqu%'p;kZ ikB~;dze iw.kZ dj ysa A vr% foHkkx }kjk tkjh lanfHkZr Kkiu fnukad 31-07-2000 ,oa bl Kkiu ds vuqdze esa tkjh fd;k x;k vkns'k dz0 ,Q 1&143 @2000 @38&1] fnukad 07-09-2000 ,rn~ }kjk rRdky izHkko ls fujLr fd;s tkrsA**
11. Reliance is also placed on the circular of UGC, New Delhi dated 18th January, 2007 (filed today) wherein the date of completion of said courses was extended upto 30th June, 2007. Relevant portion reads as under:
"I am directed to inform you that the issue of participation in orientation / refresher courses in respect of eligible Teachers / Assistant Librarian / College Librarian / Assistant Director of Physical 7 WP. No 17433/2007(S) Education / College Director of Physical Education for placement / promotion under Career Advancement Scheme was considered by the Commission at its meeting held on 27.12.2006. The Commission resolved to extend the date for participation in Orientation / Refresher Courses in respect of Teachers / Assistant Registrars / Assistant Librarian / College Librarian / Assistant Director of Physical Education / College Director of Physical Education upto 30th June, 2007 for the purposes of Career Advancement."
Higher Education Department of M.P. issued another circular dated 29.09.2008, the relevant portion of it reads as under:
**fo'ofo|ky; vuqnku vk;ksx ubZ fnYyh }kjk tkjh ifji= dzekad ,Q&2 @ 16@ 2006 @ ih ,l @ fnukad 18-07-2008 ds ifjizs{; esa f'k{kdksa dks ofj"B @izoj Js.kh osrueku esa LFkkuu gsrq mUeq[khdj.k iqu'p;kZ ikB~;dze esa Hkkx ysus dh NwV fnukad 20-06-2009 rd c<+k;h tkrh gSA** The same is followed by another circular dated 10.11.2010 jkT; 'kklu }kjk fo'ofo|ky; vuqnku vk;ksx ubZ fnYyh }kjk tkjh ifji= dzekad ,Q&2&16@2002 ih-,l- fnukad 03-06-2010 ds ifjizs{; esa f'k{kdksa dks ofj"B @ izoj Js.kh osrueku esa LFkkuu gsrq mUeq[khdj.k @ iqu'p;kZ ikB~;dze es Hkkx ysus dh fnukad 31-12-2010 rd NwV iznku dh tkrh gSA A perusal of the circular of UGC, New Delhi dated _ December, 2012 shows that requirement to participate in refresher and orientation course is extended upto 31.12.2013 for the purpose of placement in senior / selection grade of career advancement scheme. This is an admitted fact that petitioner stood retired on 31.07.2013 and before that he has never participated in the said courses. The basic question is whether the petitioner can be deprived form the benefits of the senior scale and selection grade because of his non-participation in the said courses. Learned Govt. Advocate although submits that action against similarly situated persons who are suffering from the same deficiency is in pipeline, it is gathered that the return containing the said stand was filed way back on 17th April, 2009. There is no material on record to show that any such action was taken against the similarly situated persons. The condition laid down in the scheme is to 8 WP. No 17433/2007(S) participate in two refresher course. Admittedly, no refresher course was organized by the respondents in which the petitioner could have participated. The respondents have not shown any document or provision which may throw light whether any other continuing education programme of comparative quality was specified by UGC.
As per clause 10(b) of the scheme it was for the UGC to specify any such parallel education programme in which teacher can participate parallely or in addition to participation in refresher course. Thus, there is no material on record to show that there existed any other continuing education programme.
12. In the light of aforesaid, I find force in the argument of learned senior counsel that petitioner cannot be deprived or blamed for not participating in the courses. Any other view will have an impact of putting an impossible condition in the case of the petitioner, who is in the subject of Military Science. If no course was conducted, the petitioner cannot be deprived from the said benefits. Apart from this, it is not the case of any misrepresentation of fact by the petitioner. It is also not the case of the respondents that the petitioner's ACR and service record were not up to the mark. They reverted the petitioner solely on the ground that he has not participated in the refresher and orientation course.
In the case of Jagannath Achyut (supra) the Apex Court upheld the order of Government of Maharashtra. The Government of Maharashtra could not conduct the prescribed departmental examination which was condition precedent for promotion every year. Later on, the Government removed the hardship and restored the benefits to the employee from the date they would have passed the prescribed examination. The Apex Court opined and held has under :-
"It would be unjust, unreasonable and arbitrary to penalise a person for the default of the Government to hold the examination year. If the examination was not held in any year, the person who has not exhausted all the permissible chances has a right to have his case considered for promotion even if he has completed 9 years' service".
13. This matter may be examined from yet another angle. After 9 WP. No 17433/2007(S) passing the scheme, it appears that respondents were not sure about the enforceability of this scheme. Series of circulars, as mentioned above, were issued by which relaxation from participating in the said course was given which continued till the retirement of the petitioner. Needless to mention that those condition and benefits of relaxation must have been given to the teachers who have not participated in the refresher and orientation course. In other words, after issuing those relaxation circulars which continued till petitioner's retirement, number of teachers have enjoyed the benefits of senior scale and selection grade without participating in the course. The petitioner has given example of such persons in para 5.11 of the writ petition. If clause 10 of scheme is treated as mandatory for the petitioner without their being any relaxation and it is treated otherwise with relaxation for similarly situated teachers, it will amount to dividing a homogeneous class and creating a class within the class. This cannot be the intention of the scheme. In the opinion of this Court, scheme was formulated with a view to give financial upgradation to the stagnating teachers after rendering stipulated years of service without there being any change in the nature of duties. This scheme was relaxed from time to time by respondents which must have resulted into grant of benefits to other teachers who have not undergone the said courses. Thus extending benefit in other cases and snatching an accrued right is wholly arbitrary and illegal. For this reason, in my opinion, the impugned order is liable to be interfered with.
14. The impugned order Annexure P//5 admittedly entails civil consequences. The respondents should have granted opportunity to the petitioner before passing this order. I am unable to persuade myself with the stand of Government that no prejudice is caused to the petitioner. If opportunity would have been granted to the petitioner, he would have been in a position to show that as per his contention, scheme is not mandatory, the conditions are relaxed, similarly situated employees are enjoying the benefits, action is impermissible after 2 decades etc. Thus it is not the case where the petitioner had no explanation or say. For this reason also Annexure P/ 9 is liable to be set aside.
10 WP. No 17433/2007(S)
15. This Court in Prabhu Dayal Pandey (supra) opined as under:
"Administrative decisions are expected to be taken reasonably and within a reasonable time. Where the administrative authorities do not take action within a reasonable time, even the illegal acts, by lapse of time and as a result of consequent action thereupon, mature into validity."
16. The interference was made in that case because after considering long time administrative decision was taken which adversely affected the petitioner. In the present case also there is unreasonable delay of 21 years in taking back the benefits from petitioner.
17. By the impugned order Annexure P/9, the petitioner was also reverted from the post of Professor. As per 1990 Rules, the Asstt. Professor working in the senior / selection grade pay scale are eligible for promotion to the post of Professor in the scale of Rs. 3700-5700, if he/she has :
(a) completed 8 years of service in the senior scale, provided that the requirement of 8 years will be relaxed if the total service of the Asstt. Professor is not less than 16 yeas for Ph.D and M.Phil. holders 13 and 15 years respectively;
(b) obtained Ph.D. degree or an equivalent
published work;
(c) made some mark in the areas of scholarship and research as evidence by self-assessment, reports of referees quality of publications, contribution to educational renovation, design of new courses and circular, etc.
(d) participated in two refresher courses / summer institutes each of approximately 4 weeks duration of engaged in other appropriate continuing education programmes of comparable quality as may be specified by the UGC, after placement in the Senior Scale; and
(e) consistently good performance appraisal reports
18. In the present case, it is not in dispute that the petitioner fulfills the requirement of clause (a), (b) and (c). The singular reason for reversion is regarding requirement of clause (d). A simple reading of 11 WP. No 17433/2007(S) clause (d) makes it clear that the petitioner was required to participate in two refresher courses. This Court has already held that it was for the respondents to convene and organize those refresher courses in relevant subject. If they have not conducted the said courses, employee cannot be penalized or deprived from the benefits. The benefits of senior scale and selection grade were given to the petitioner w.e.f. 1986 and 1988 respectively. The promotion was given in the year 1992. Taking away of benefits of senior scale after 21 years, selection grade after 19 years and promotion after 15 years cannot be said to be reasonable and justifiable. Petitioner already stood retired on 31.07.2013. No useful purpose would be served in effecting the reversion order. The petitioner was given interim protection by this Court pursuant to which he continued in the capacity of Professor.
19. In M.A. Hameed (supra) the Apex Court set aside the reversion of the petitioner therein which was issued after a period of 11 years. The Apex Court opined that it will cause more harm than good. The findings are as under:
"We are of the view that the reversion of the appellant after he held the higher post for more than a decade was wholly unjustified. If his appointment was temporary or irregular in any manner he should have been reverted within a reasonable period. Even after the reversion order was passed the appellant continued to hold the post till 1985 under the stay order granted by the Tribunal. We are, therefore, of the view that the revision of the appellant from the post of District Inspector of Local Funds (Accounts) after a period of 11 years has done more harm than good. We, therefore, allow the appeal and set aside the order of reversion."
20. In nutshell, it is clear that the petitioner was given benefits long back and he continued to enjoy the same uninterruptedly. The respondents on their own relaxed the eligibility condition of undergoing refresher courses for similarly situated teachers. Hundreds of such teachers were placed in the senior and selection grade, who have not participated in the requisite courses. The respondents have not shown any material to demonstrate that they were reverted or their benefits were taken away.
12 WP. No 17433/2007(S)
21. In the facts and circumstances of this case, it is an admitted position that no orientation and refresher course was ever conducted in the subject of Military Science. The action is taken after more than two decades to take away the senior scale. Delay makes the entire action unreasonable. In the peculiar facts and circumstances, equity demands that the order Annexure P/9 must be set aside. Accordingly, Annexure P/9 is set aside. This judgment is delivered in the peculiar facts of the case and shall not be treated as a precedent.
22. Petition is allowed. Annexure P/9 is set aside. Petitioner shall get all the benefits arising thereto. No costs.
(SUJOY PAUL) Judge Sarathe/-