Punjab-Haryana High Court
Latika Sharma vs Pb. University ;And Anr on 17 September, 2014
Author: Jaswant Singh
Bench: Jaswant Singh
CWP No.8417 of 2005(O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
CWP No.8417 of 2005(O&M)
Date of Decision:-September 17, 2014
Dr. Latika Sharma
......Petitioner.
Versus
The Panjab University & Ors.
......Respondents.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH
Present:- Mr. M.S. Sindhu, Advocate for the Petitioner.
Mr. Gautam Pathania, Advocate for
respondent no.1-University.
Mr. Amit Rao, Advocate for respondent no.2-UGC.
Mr. Rajiv Atma Ram, Senior Advocate assisted by
Mr. Sunish Bindlish, Advocate for
impleaded private respondent no.3.
***
JASWANT SINGH, J.
1. The Petitioner is a Senior Lecturer in the Department of Education, Panjab University/respondent no.1 has prayed for the following relief in the present Writ Petition:-
(i) the order dated 26.04.2004 ( Annexure P-5 ) be quashed whereby her claim for counting previous service for placement in Senior Scale, as per UGC Guidelines due to 10 days gap in joining the University after getting relieved from previous employer, has been declined.
(ii) a Writ of Mandamus be issued directing the respondent authorities to modify the order dated 24.03.2005 VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #2# ( Annexure P-7) in terms of considering the date of eligibility for placement in the Senior Scale of Lecturer as 11.06.2001 instead of 20.06.2004 by counting the previous regular service without any break as a Lecturer in terms of the University grants Commission's Career Advancement Scheme;
(iii) a Writ of Mandamus be issued modifying the orders at Annexure P-7 by treating the date of eligibility for placement in the Senior Scale of Lecturer to read as 11.06.2001 instead of 20.06.2004;
(iv) It be further declared that the petitioner is entitled to have her previous regular service without any break to be counted for purposes of placement in senior scale of Lecturer in terms of the UGC regulations.
2. Petitioner impleaded Panjab University as respondent no.1 and University Grants Commission as respondent no.2 and mentioned in para no.1 of the Writ Petition that primary relief regarding placement of Lecturer in the Senior Scale has been sought against the respondent-University. Mrs. Kirandeep Singh on her application was impleaded as party-respondent no.3 vide order dated 2.5.2008 by allowing CM No.10499 of 2006.\
3. The case of the petitioner as pleaded in the writ petition is that she possesses qualification of Doctor of Philosophy in Faculty of Education and before her appointment in the Panjab University as Lecturer in Education, Department of Education vide appointment order dated 20.12.1999 (Annexure P-1), she was working on regular basis as Lecturer in the St. Teresa Institute of Education (for short STIE) affiliated to the University of Mumbai in the scale of Rs.8000-275-13500 since 11.06.1997. Service of the petitioner in that institute was regular without any break and her appointment was made in response to a regular selection process in conformity with UGC norms as well as the rules and regulations governing VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #3# appointment in the University of Mumbai.
4. As submitted in para no.4 of the writ petition, in pursuance of the appointment letter dated 20.12.1999 (P-1), petitioner made a request to the Panjab University-respondent no.1 for grant of joining time and vide letter dated 18.01.2000 she was granted joining time upto 29.03.2000. As she could not be relieved by her previous employer i.e. St. Teresa Institute, Mumbai, therfore, she again made a request for extension of joining time and vide letter dated 03.05.2000( P-2) respondent-University granted her extension in joining time upto 20.06.2000. She was relieved by STIE on 09.06.2000 and joined in the respondent-University on 20.06.2000. Keeping in view her regular past service in the St. Teresa Institute, Mumbai, her pay was protected by the respondent-University vide order dated 5.9.2002 (P-3).
5. She submitted an application dated 9.3.2004 (P-4) to the Vice Chancellor, Panjab University requesting counting of her past service rendered with St. Teresa's Institute of Education, Mumbai w.e.f. 11.06.1997 in equivalent pay scale and for placement in the Senior Scale of Lecturer. Her request was rejected by the respondent-University vide order dated 26.04.2004( P-5) on the ground that she was relieved by her previous employer on 9.6.2000 and joined respondent-University on 20.06.2000 i.e. after 10 days gap and that due to gap in service her previous service cannot be counted for placement in Senior Scale as per UGC guidelines and further mentioned that a letter for clarification has already been written to the University Grants Commission for which no reply has been received.
6. Respondent-University directed the petitioner vide letter dated 10.02.2005 (Annexure P-6) to present herself for interview at the meeting VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #4# of the Selection Committee on 24.02.2005 in the office of Vice Chancellor, Panjab University for placement in Senior Scale under the UGC Career Advancement Scheme. Petitioner attended the said interview and respondent-University issued orders dated 24.03.2005 (P-7) in terms of Senate decision dated 20.03.2005, for placement of Lecturers in Senior Scale of Rs.10,000-325-15,200 with effect from dates mentioned therein subject under UGC Career Advancement Scheme and mentioning that the post would be personal to the incumbents and that interse seniority of the persons promoted under Career Advancement Scheme, 1996 will not be affected. Name of the petitioner appeared at Sr. No.11 in that order and she was placed in the Senior Scale w.e.f. 20.06.2004. To that extent she challenged the order dated 24.03.2005 (P-7) and claimed that in terms of Regulation 8.0.0. issued by the University Grants Commission vide Notification No.F.3-1/94 (PS) dated 24.12.1998 (P-8) her service rendered in St. Teresa Institute, Mumbai was required to be counted and her eligibility for placement in the Senior Scale would thus become due w.e.f. 11.06.2001 instead of 20.06.2004.
7. Upon notice, respondent-University filed reply dated 20.10.2005 admitting therein that petitioner joined on 20.06.2000 and as per the UGC Notification, 1998, which was approved by the Senate of the Panjab University on 28.03.1999 regarding counting of previous service without any break as a Lecturer or equivalent in a University, College should be counted for placement of Lecturer in Senior Scale/Selection Grade, would have been entitled to the relief, however, since the petitioner was relieved by her previous employer i.e. St. Teresa Institute of Education, Mumbai on 09.06.2000 and she joined respondent-University on VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #5# 20.06.2000 i.e. after a gap of 10 days, hence her previous service cannot be counted as per above UGC Regulations. Relevant Para 5 of the written statement filed by Panjab University-respondent no.1 is reproduced hereunder:-
" Para 5 is admitted to the extent that the UGC Regulations mentioned in this Para are the part of UGC Notification, 1998, which was approved by the Senate of the Panjab University on 28.03.1999. In Clause '8.0.0. Counting of Past Service' mentioned on page 6 of the petition, it has clearly been written in the first line that "Previous Service without any break as a Lecturer or equivalent in a University, College....should be counted for placement in Senior Scale/Selection Grade." (emphasis supplied). Whereas the petitioner was relieved by her previous employer i.e. S.T.I.E., Santa Cruz, Mumbai, (where she was working as Lecturer) on 9.6.2000 and she joined this University on 20.06.2000 i.e. after a gap of 10 days. Due to this gap in service i.e. From 10.06.2000 to 19.06.2000 her previous service cannot be counted as per above UGC Regulations."
It was further mentioned in para 7 of the reply that decision for not counting of service was based on Clause 8.0.0. of the UGC Notification, 1998. The letter to the UGC for clarification was sent on the basis of orders of the Vice Chancellor dated 22.09.2003, but no reply from the UGC having been received till date. However, reply received from the UGC in similar case is given below:-
" With reference to your letter no.8582 dated 1.3.2000 seeking clarification in case of teachers who migrate from one University to other for Career Advance Scheme, I would like to request you to refer to Para 8.0.0. of the UGC Notification No.F.3-1/94 (PS) dated 24.12.1998, which is self explanatory."
(Annexure R-1/2).
VINAY MAHAJAN2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh
CWP No.8417 of 2005(O&M) #6#
8. In view of their reply, respondent no.1 University was directed by this Court vide order dated 2.8.2007 to file an affidavit of its Registrar, disclosing the rule/regulation permitting the University to count past service of its employees, towards total length of service and since when that Rule is applicable. Respondent/University was also directed to produce Notification/Rule, if any in that regard and case was adjourned to 09.08.2007. Respondent/University filed an affidavit dated 8.8.2007 of S.S. Bari, Registrar along with annexures Notification dated 24.12.1998 ( Annexure R-1/1), Notification dated March, 2000 (Annexure R-1/2) and letter dated 22.01.2001 (Annexure R-1/3). The said affidavit dated 8.8.2007 alongwith annexures was taken on record vide order dated 9.8.2007.
9. In the affidavit dated 8.8.2007 it was stated that the past service of Lecturer(s) in the respondent University is/was to be counted towards the total length of service as per Clause 8.0.0. of the UGC Notification dated 24.12.1998, adopted by the University Sentate in its meeting dated 28.03.1999. Relevant portion of the notification, Annexure R-1/1 attached with the affidavit and reproduced in the affidavit is extracted hereunder:-
" 8.0.0. COUNTING OF PAST SERVICE Previous service, without any break as a Lecturer or equivalent, in a University, College, National Laboratory, or other Scientific Organizations, ie.e. CSIR, ICAR, DRDO , UGC, ICSSR, ICHR and as a UGC Research Scientist, should be counted for placement of Lecturer in Senior/Selection Grade provided that- 8.1.0. The post was in an equivalent grade/scale of pay as the post of a Lecturer.
8.2.0. The qualifications for the post were not lower than the qualifications prescribed by the UGC for the post of Lecturer;VINAY MAHAJAN
2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh
CWP No.8417 of 2005(O&M) #7# 8.3.0. The candidate who apply for direct recruitment should apply through proper channels;
8.4.0. The concerned Lecturers possessed the minimum qualifications prescribed by the UGC for appointment as Lecturers;
8.5.0. The post was filled in accordance with the prescribed selection procedure as laid down by the University/State Government/Central Government/ Institution's Regulations;
8.6.0. The appointment was not ad hoc or in a leave vacancy of less than one year duration. Ad hoc service of more than one year duration can be counted provided-
a) the ad hoc service was of more than one year
duration;
b) the incumbent was appointed on the
recommendation of duly constituted Selection
Committee, and
c) the incumbent was selected to the permanent post
in continuation to the ad hoc service, without any break. "
It was further mentioned in the affidavit dated 8.8.2007 that UGC Notification dated 24.12.1998 ( Annexure R-1/1) was superseded by the UGC itself vide UGC Regulations 2000 regarding minimum qualification for appointment and advancement of teachers in University and Colleges, attached therewith as (Annexure R-1/2).
It was further stated in the affidavit that as regards the counting of past service, there is no mention/clause in the UGC Regulation, 2000 (Annexure R-1/2). The respondent University sought clarification from the UGC and in response thereto the UGC vide its letter dated 22.01.2007 (Annexure R-1/3) (date wrongly mentioned as the date on the letter R-1/3 is VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #8# 22.01.2001), unequivocally clarified that clause 8.0.0. of UGC Notification dated 24.12.1998 is still valid and further mentioned that respondent University is, therefore, following the clause 8.0.0. of UGC Notification dated 24.12.1998 for counting the past service towards total length of service. The text of letter dated 22.01.2001 (Annexure R-1/3) written by the UGC to Registrar, Panjab University reads as under:-
" With reference to your letter no.383/R/DS dated 11.01.2001 on the subject cited above, I am directed to inform you that para 8.0.0. regarding counting of past service as given in the UGC Notification of 1998 is still valid. The UGC regulations indicate only those issues on which UGC is empowered to make Regulations. "
( emphasis supplied )
10. Newly added private respondent no.3-Dr. Kirandeep Singh filed her separate written statement dated 19.05.2008 taking the preliminary submission/objection that if the claim of the petitioner for counting of her past service is allowed, it would affect seniority of the other persons senior to her and that petitioner has not impleaded other persons who are senior to her and whose seniority would be affected in the event the present writ petition is allowed. It has been contended by the respondent no.3 that petitioner has based her claim for counting of her service under Regulation 8.0.0. and that the said paragraph 8 which has been relied upon by the petitioner does not exist in the 2000 Regulations for counting of previous service for the purpose of Career Advancement Scheme. It has been further averred that UGC does not have the power to frame regulations on the subject of counting of past service and that even assuming that 1998 Recommendations were applicable, they are merely recommendations and do not give enforceable right to the writ petitioner. It was further contended VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #9# that she was relieved from her previous service on 09.06.2000, however, she joined in the respondent-University only on 20.06.2000. Thus there is a break in service of the petitioner and that on this count alone the said service is not liable to be counted. It was also contended that even in terms of letter granting extension in joining time the petitioner was liable to join the respondent university upto 20.06.2000 i.e. on or before 19.06.2000 and that the petitioner did not joint the respondent-University even within the extended period and thus prayed for dismissal of the writ petition.
11. Petitioner filed replication dated 09.12.2008 to the written statement filed on behalf of respondent no.3 controverting the contentions made by respondent no.3 and pleaded that her claim in the writ petition is for counting her past service for placement in the senior scale of Lecturer with effect from 11.06.2001 instead of 20.06.2004 and the said claim of the petitioner is personal to her and for adjudication upon the same, Dr Kirandeep/respondent no.3 is neither necessary nor proper party. This contention of the petitioner finds support from Annexure P-7 whereby petitioner and other Lecturers were placed in Senior Scale, the same reads as under:-
" In terms of Senate decision dated 20.03.2005, the following persons have been placed in Senior Scale of Lecturer/Lecturer-cum-Curator viz Rs.110000-325-15200 w.e.f. the date mentioned against each (subject to fulfillment of UGC conditions) under UGC Career Advancement Scheme (Revision of Pay Scales for teachers, 1996) at a starting pay to be fixed under the Rules of the University. The post would be personal to the incumbents. The inter-se seniority of the persons promoted under Career Advancement Scheme, 1996 will not be affected. "
( emphasis supplied ) VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #10#
12. It was asserted (at page 96 of the paper book ) that respondent- University has granted the benefit of past service to other teachers in terms of Clause 8.0.0. of the UGC Notification of 1998 even after the notification of the UGC Regulations 2000 to demonstrate that clause 8.0.0. is still valid and does not stand superseded in any manner and the details of those teachers are:-
1. Dr. Baij Nath Prasad, Department of Hindi
2. Dr. N.K. Rathi, Department of Physical Education
3. Sukhjit Kaur, Department of Lexicography
4. Sukhdev Singh, Department of Punjabi
5. Dr. Vandna Mehra, Department of Education
6. Dr. Sukhwant Bajwa, Department of Education
7. Dr. G.S. Brar, Department of Physical Education
8. Dr. Deveshwar, Department of Lexicography
9. Ms. Deepti, Department of English
10. Dr. Akshay Kumar, Department of English
11. Dr. Amritpal Toor, Department of Chemical Engineering
12. Dr. Anju Suri, Department of History.
13. Dr. Neelu Kang, Department of Society.
13. Respondent no.2-University Grants Commission filed counter affidavit dated 25.09.2009 stating therein that University Grants Commission has been constituted under the provisions of UGC Act, 1956 (Act No.3 of the 1956 Act) which came into force w.e.f. 05.11.1956. The Act was enacted to make provisions for the coordination and determination of standards in the Universities and to take steps, as it may think fit for promotion and coordination of University education and for maintenance of standards of teaching. UGC in consultation with Ministry of Human Resource and Development (Department of Education) considered the issue of counting of previous service in its meeting held on 11.10.1990 for the VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #11# purpose of Senior Scale/selection grade under the Career Advancement Scheme for Lecturers as resolved, as has been incorporated in the Notification dated 24.12.1998 (reproduced supra). Thereafter the UGC vide its D.O. Letter no.F.1-6/90 (PB Cell) dated 27.11.1990 informed all the Vice Chancellor and Secretary, Department of Education of the States regarding the above decision of the Commission and it was further requested to bring the said decision to the notice of colleges under their jurisdiction. Subsequently the UGC vide its D.O. Letter No.F.2-6/98 (PS) dated 25.12.1998 issued a clarification regarding Clause 1(e) of its earlier letter dated 27.11.1990, according to which it was decided to include service rendered in adhoc capacity for counting of past service for placement in the Sr. Scale/Selection Grade. Thereafter the UGC vide its letter No.F.3-1/94 (PS) dated 24.12.1998 circulated the UGC notification 1998 on the revision of pay scales, minimum qualification for the appointment of teachers in the University and Colleges and other measures for the maintenance of the standards, to the Vice Chancellors of all Universities as well as to Education Secretaries of all the State/Union Territories and further mentioned that Clause 8.0.0. of the said UGC Notification deals with the counting of the past service and reproduced the same in the reply, which has already been detailed in the preceding paras. UGC clearly stated in para 8 of the reply that past service shall be counted for the purpose of placement in senior scale/selection grade. Para 8 of the reply is reproduced hereunder:-
" That in the circumstances it is respectfully submitted that past service shall be counted for the purpose of placement in senior scale/selection grade subject to the fulfillment of the conditions as stipulated in Clauses 8.0.0. to 8.6.0. of the UGC VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #12# Notification, 1998. "
14. Added respondent (respondent no.3) filed rejoinder dated 9.2.2010 to the written statement filed by respondent-UGC stating therein that letter dated 24.12.1998 which provides for counting of past service as Lecturers in an earlier College is to count for placement of a Lecturer in a Senior Scale/Selection Grade, however, this letter was never notified by the Government of India. It was contended that UGC concealed in its affidavit the fact that it issued statutory Regulations which are duly notified by the Government of India which are called University Grants Commission (Minimum Qualifications required for the appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it), Regulations 2000 and that these Regulations which are statutory superseded any letter or office order or recommendations earlier made by the UGC. It was further contended that Section 26 of the UGC Act provides the power to make Regulations by the notification in the official gazette with the previous approval of the Central Government as provided in Section 26 and that Regulations framed by the UGC in terms of Section 26 of the Act are mandatory and binding whereas its recommendations are not and that since the Regulations have been framed the earlier office orders/notifications, if any, cannot be relied upon.
15. Petitioner filed replication dated 7.11.2011 to the reply filed by respondent no.1-Panjab University stating therein that she was granted extension to join respondent-University upto 20.06.2000 and that petitioner had joined as Lecturer at St. Teresa Institute in Mumbai on 11.06.1997 which was a regular service without any break and since petitioner holds a Ph.D degree so in terms of regulation 8.0.0. she becomes eligible for VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #13# placement as Lecturer in the Senior Scale with effect from 11.06.2001, on completion of four years of regular service without any break.
16. Petitioner also placed on record for proper adjudication the UGC Notification dated 24.12.1998 as Annexure P-8 and proceedings of the Senate of Panjab University dated 28.03.1999 as Annexure P-9, (through CM No.1602-CWP/2014 filed on 06.02.2014 and allowed on 19.03.2014). The Senate in its proceedings dated 28.03.1999 resolved that UGC letter no.3-1/94 (PS) dated 24th December, 1998 be adopted in toto for university and college teachers. Keeping in view the additional documents, respondent University was directed on 10.02.2014 clarifying whether the notification of the UGC dated 24.12.1998 (P-8) has been adopted by the University or not. In response short affidavit dated 26.02.2014 of Prof. A.K. Bhandari, Registrar, Panjab University was filed admitting that UGC notification dated 24.12.1998 has been adopted by the University Senate in its meeting dated 28.03.1999 and that UGC notification dated 24.12.1998 was superseded by the UGC Regulations 2000 regarding minimum qualification for appointment and advancement of teachers in University and Colleges and also attached copy of the affidavit dated 8.8.2007 already filed by the University. Para 3 of the affidavit dated 26.02.2014 is reproduced hereunder:-
" That in affidavit dated 08.08.2007 (appended as Annexure R-1/4 therewith) it has been clarified that the past service of Lecturer(s) in the Respondent University is/was counted towards the total length of service as per Clause 8.0.0. of the UGC Notification dated 24.12.1998, has been adopted by the University Senate in its meeting dated 28.03.1999. However, the UGC Notification dated 24.12.1998 was superseded by the UGC Regulations 2000 regarding minimum VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #14# qualification for appointment and advancement of teachers in University and Colleges. It is further stated that regarding the counting of past service, there is no mention in the UGC Regulation 2000 and the Regulation are silent on this point. The Panjab University had sought clarification regarding the same from the UGC and vide letter dated 22.01.2007/20.01.2001 (Annexure R-1/3) at page 124 of the paper book the UGC clarified that the clause 8.0.0. of the UGC Notification dated 24.12.1998 is still valid, meaning thereby that the Panjab University is still following the Clause 8.0.0. of the UGC Notification dated 24.12.1998 for counting the past services towards total length of service. "
17. Counsel for the parties heard at length. Counsel for private respondent no.3 has filed a reply to the short affidavit dated 26.2.2014 filed by the Registrar, Panjab University and the same is taken on record.
18. Learned Counsel for the petitioner has argued that the sole reason that there was a ten days gap from the date of relieving as Lecturer from the previous employer-S.T.I.E. and joining as Lecturer with the present employer-Panjab University for denying the benefit of counting of past service with previous employer for the purpose of benefit of placement of senior scale as per UGC Guidelines 1998, duly adopted by the respondent-University vide the impugned order dated 24.03.2005 (P-7) is totally artificial, arbitrary and illegal and thus liable to be set aside. He submits that it is quite natural and well accepted that there would be lapse of some time from the date of relieving from the previous employer and date of joining with the new employer and since the respondent-University had accepted the joining of the petitioner within the extended time and protected her pay by giving the benefit of past service with the previous employer, the said basis/reason assumed in the impugned order is totally misconceived VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #15# and hence liable to be set aside.
Learned Counsel for the University has raised sole argument in line with their written stand that the aforesaid gap of ten days between date of relieving from the previous employer and date of joining with the university does not entitle the petitioner to the grant of the benefit of the previous service in terms of the UGC Notification dated 24.12.1998, duly adopted and followed by the University.
Learned Counsel for the UGC-respondent no.2 more or less has not contested the claim of the petitioner.
On the other hand, learned Counsel for the private respondent no.3 has vehemently contested the case and raised the following arguments:-
(i) the petitioner in para 5 of the petition has reproduced clause 8.0.0 of the UGC letter dated 24.12.1998 by incorrectly showing them as part of statutory UGC Regulations 2000 and, therefore, there is a complete mis-statement and concealment of material facts;
(ii) the letter/instructions dated 24.12.1998 containing Clause 8 regarding counting of past service with the previous employer for placement of Lecturer(s) in Senior/Selection Grade was never notified by the UGC as a Regulation in terms of Section 26 of the UGC Act, therefore, the petitioner can avail no benefit of counting of past service;
(iii) Even if the letter dated 24.12.1998 has to be read as an Instruction or Regulation conferring the claimed right on the petitioner, the same is ultra vires the provisions of Article 14 and 16 of the Constitution of India in as much as it grants an opportunity to the petitioner to steal a march over others, who were appointed earlier or were placed higher in merit to the petitioner in the same selection. In effect, it is claimed that it would render the petitioner Senior to respondent no.3 and others who have not been impleaded.
(iv) Alternatively, it is argued that the benefit under Clause 8 of the Letter/Instructions dated 24.12.1998 is subject to fulfilling of certain conditions, and since it is not pleaded VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #16# that the petitioner had applied through proper channel at the time of appointment with the University, it has to be accepted that she does not fulfill the said condition and, therefore, not entitled to the claimed benefit.
(v) That the adoption by the Senate/University of the Letter/ Instructions dated 24.12.1998 is meaningless till the same is incorporated by making an amendment in the University Calendar. In support he cites a judgment of the Hon'ble Supreme Court reported as (2013) 8 SCC 633 titled as Jagdish Prasad Sharma etc. Vs. State of Bihar & Ors. & a Division Bench judgment of this Court reported as 2008(7) SLR 198 titled as Dr. A.C. Julka & Ors. Vs. Panjab University & Ors.
19. After giving thoughtful consideration to the rival submissions, this Court is of the considered opinion that the stand of the respondents is untenable and the petition deserves to be allowed.
From the documents placed on record and arguments advanced, it becomes abundantly clear that petitioner before joining respondent University was working as a Lecturer in St. Teresa Institute of Education on regular basis under University of Mumbai w.e.f. 11.06.1997 in the pay scale of Rs.8000-275-13,500. She was appointed in Panjab University as Lecturer carrying same pay scale after due selection vide appointment letter dated 20.12.1999 (P-1) and directed to report for duty at the earliest. She was further directed to bring relieving order from her present employer failing which it was made clear that she will not be allowed to join. Relevant para of the appointment order dated 20.12.1999 reads as under:-
" In case you are employed, you are requested to bring relieving order from your present employer failing which you will not be allowed to join."
She sought extension, which was allowed upto 20.06.2000 and ultimately she joined on 20.06.2000 and was permitted to join by the University. Her pay was protected vide letter dated 5.9.2002 (Annexure P- VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh
CWP No.8417 of 2005(O&M) #17#
3) which read as under:-
" I am to inform you that the Vice Chancellor has
protected the pay of Dr. Latika Sharma, Lecturer at Rs.9100/- w.e.f. 20.06.2000 in the pay scale of Rs.8000-275-13500 as per last pay drawn certificate submitted by her with next date of increment on 20.06.2000 i.e. w.e.f. the date of her joining in Panjab University. "
From the above, it is apparent that the petitioner on submission of her relieving order from her previous employer joined as Lecturer with the respondent-University within the extended time and was granted the benefit of her previous service as Lecturer towards fixing of her pay in the same pay scale/equivalent grade.
20. That her representation for counting of her past service for the placement in Senior Scale in terms of Letter/Instructions/Notification dated 24.12.1998, however, was rejected vide letter dated 26.4.2004 (P-5) on the ground that there was gap of ten days between her relieving from her previous college and joining in respondent-University and with further recital that clarification has been sought from UGC. She was granted placement in Senior Scale vide order dated 24.03.2005 (P-7) w.e.f. 20.06.2004 (by counting her service only with the respondent-University) clearly mentioning in the order that inter-se seniority of the persons promoted under Career Advancement Scheme, 1996 will not be affected. The respondent-University and the UGC-respondent no.2 have not disputed the validity and applicability of the Notification dated 24.12.1998 and governing the issue of grant of benefit of past service towards placement of teachers/Lecturers in Senior/Selection Grade even after passing of the subsequent statutory Regulations issued by the UGC. The respondent- University undisputedly has granted similar benefit to 13 other teachers, as VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #18# enumerated in para 12 of this judgment. The reason that there was 10 days gap in service w.e.f. 9.6.2000 to 20.06.2000 i.e. when the petitioner was relieved from her previous college and when she joined with the respondent-University cannot at all stand in the way of the petitioner to avail the claimed benefit since Clause/Para 8.0.0 of the Notification dated 24.12.1998 nowhere contemplates continuity of four years regular service as Lecturer for placement in the Senior/Selection Grade. In service jurisprudence, reasonable joining time (atleast one week) is afforded even in a case of transfer of an employee from one place to the other within the State. Here is a lady teacher, who has come all the way from Mumbai to Panjab University at Chandigarh and availed 10 days joining time, which cannot by any stretch of reasoning or imagination be construed as unreasonable. Even the period of joining time availed is irrelevant, as the factor essential is that she joined her service within the extended time. That apart, once the respondent-University considered her to have joined within the granted/sanctioned extended time and protected her pay by counting her past service, it cannot turn around and assume a non existent basis for denying the claimed benefit under the Notification dated 24.12.1998.
The said gap in service also cannot be construed as a "break in service" as contemplated in the Notification dated 24.12.1998 rendering a Lecturer ineligible for counting of past service, since it relates to break in the "previous service" and not break between the previous service at the former college and time taken for joining/adjusting/absorbing the petitioner in the subsequent colleges. The issue is no longer res integra. A Division Bench of this Court in a case reported as 2003(1) RSJ 600 titled as R.P. Chillar & Ors. Vs. State of Haryana & Ors. in similar circumstances has VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #19# already settled the issue. In that case the petitioner/R.P. Chillar was a Lecturer in a privately managed aided College and on its closure was absorbed in another privately managed aided college in accordance with the government instructions after a period of one and a half years. Sh. Chillar was claiming benefit of his service with his previous college for the purpose of grant of Senior Scale/Selection Grade after 18/16 years of service. The respondent-State was relying upon the revised policy issued by the UGC vide its letter dated 27.11.1990 duly adopted by the government to urge that there was a break of one and a half year in the service of Sh. Chillar after his relieving from his previous institution and absorption with the subsequent institution. The Hon'ble Division Bench while interpreting identical condition contained in the letter dated 27.11.1990 of the UGC has in para 19 held as under:-
"19. Therefore, in this view of the matter the break in service contemplated in the letter dated 27.11.1990 is that there should not be break in the previous service i.e. the service in the earlier Institution where the lecturer had worked. It does not relate to the period of time taken after leaving the earlier Institution till the time of joining the subsequent Institution. After leaving the D.A.V. College, Hassangarh, sometime was needed by the respondent authorities to adjust/absorb the petitioners. This period of time cannot be taken into account or be termed as break in previous service so as to non-suit the petitioners for the grant of senior scale/selection grade. The expression "previous service without any break as a lecturer"
in the letter dated 27.11.1990 relates to the break in the VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #20# previous service' and not break between the previous service at the D.A.V. College, Hassangarh and the time taken for adjusting/absorbing the petitioner in the subsequent colleges."
From the above, it is evident that the case of the petitioner is squarely covered on all fours.
The Hon'ble Supreme Court in case titled as Sharadedu Bhushan Versus Nagpur University, Nagpur & Ors. 1987(Supp.) Supreme Court Cases 53, while interpreting the criteria for placement in a Senior Scale using the words "Experience of University teaching up to degree Classes for a period of five years" held that length of service within the University or continuity of service was not the basis for grant of higher grade as an incentive to the Lecturers. It was held that the emphasis in the criteria was on the experience gained by the teacher while in the employment of a University while proceeding to condone the break of two years service between the date of resignation of the appellant-therein from a college affiliated to the Calcutta University and the date of his subsequent employment as a Lecturer in a College affiliated to Nagpur University, and grant benefit of higher Grade in terms of the criteria laid down in the similar instructions as in the present case. The claim of the petitioner is identical under similar instructions/notification and thus is entitled to the similarly claimed benefit.
21. Now adverting to the arguments raised on behalf of private respondent no.3.
The argument regarding concealment or mis-statement of facts in para 5 of the writ petition so as to disentitle the petitioner for any relief by this Court is untenable and liable to be rejected. It appears to be a VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #21# inadvertent mistake duly clarified in the replication by specifically basing her claim on the Letter/Notification dated 24.12.1998 issued by the UGC. It is not the case that either the University or UGC or the private respondent has been mislead in understanding the issue involved in the writ petition. Therefore, the petitioner cannot be made to suffer for such an inadvertent mistake causing no prejudice to the parties.
The argument that the Letter/Notification dated 24.12.1998 was never notified by the UGC as a Regulation in terms of Section 26 of the UGC Act would have become relevant in case the University had not adopted and implemented the same and still relief was claimed on the plea of their mandatory and binding character. However, the said Letter/Notification dated 24.12.1998 can certainly be considered as a recommendary instruction conveying the decision of the commission to provide for grant of such relief subject to fulfillment of laid down conditions, and the same having been duly adopted by the Senate/University would legally and validly govern the subject they relate to. It is not disputed that the University after adoption of the Letter/Notification dated 24.12.1998 has granted similar relief to13 other similarly situated Lecturers under the said notification. The argument is thus rejected.
The third argument regarding the Letter/Instruction dated 24.12.1998 being ultra vires the provisions of Article 14 & 16 of the Constitution of India is totally misconceived and thus rejected. The added private respondent no.3 has neither laid any foundation for its challenge nor can legally assail in the writ petition filed by the petitioner. As far as the question of affecting the seniority is concerned, the plea is also misplaced. It cannot be disputed that inter se seniority is to be determined on the basis VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #22# of the ranking in the selection list and as per Recruitment Rules. It also cannot be disputed that the schemes of placement of teachers/Lecturers in Higher Grades have been issued by the UGC as a measure of incentive for professional development in order to maintain higher standards in higher education, which are totally personal to the individual teacher and do not affect the seniority as is apparent from order dated 24.03.2005 (Annexure P-
7) itself, whereby the benefit of placement in the senior scale was granted to the 26 teachers (including the petitioner although w.e.f 20.06.2004 instead of the claimed date of 11.06.2001). The further plea that other affected seniors have not been impleaded, thus also fails besides the alleged seniors (including respondent no.3) having no locus to the lis between the petitioner and the University. In somewhat similar circumstances, a Division Bench of this Court in a case reported as Shanti Lal Sikka Vs. The State of Haryana through Secretary to Government Irrigation and Power Department and Ors 1972 SLR 617 held that in case the statutory rules were silent over condonation of break in service, in the absence of any restriction, the benefit of condonation of break in service could not be denied to an employee on the ground that it would affect the others. For ready reference the relevant para 11 reads as under:-
" The above discussion leads to the irresistible conclusion that there was every justification for break in service being condoned. The learned Counsel for the respondents were asked to point out to any ground for justification of the impugned order of revocation of condonation of break in service of the appellant passed after more than four years.
They have not pin pointed any. The learned Counsel
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appearing on behalf of respondent no.3 cotended that the order of condonation of break in service passed on July 16, 1965 affected his seniority and consequently there was every justification after re-organization for the impugned order being made in 1969 at the instance of respondent no.3. The question of condonation of break in service is entirely one between the incumbent, whose break in service is to be condoned and the Head of the Department unless the order of the condonation of break is challenged to be mala fide one. No such plea has been raised on behalf of respondent no.3. Once on merits there is justification for break in service of a Government servant of a cadre being condoned and the break so condoned incidentally and indirectly affects as a consequent of that order of condonation the right of other Government servants in that cadre, they shall have no locus-standi to have that order rescinded. "
The fourth alternative argument that the petitioner has not pleaded that she had "applied through proper channel" at the time of her selection and appointment to the present University, and thus does not fulfill one of the requirements of Clause/para 8.3.0 (reproduced in para 9 here above) of the notification dated 24.12.1998 (Annexure P-8), therefore, not entitled to counting of her past service for placement in the Senior Scale/Grade, also cannot be accepted. It is not the case of the Respondent- University that the petitioner did not fulfill the requirement, if any, of "applying through proper channel". The said term has not been statutorily or otherwise defined anywhere, however, in common parlance it is well VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #24# understood to mean to apply through a hierarchical channel, so as to protect the interest of the previous Institution as also serve the interest of the applicant as well as the succeeding Institution. The previous Institution gets prior knowledge of the applicant employee seeking employment elsewhere, as also an opportunity to express its opinion on the employee, which may benefit the succeeding Institution and, perhaps, the employee. The fulfillment of the said condition in the normal course of events is directory and not mandatory in nature. The fact that the petitioner had submitted her "relieving order" from her previous college, in terms of her appointment letter, before permitting to join the respondent-University indicates that there was nothing due or against the petitioner, and the respondent-University having accepted the same would, in the opinion of this Court, give rise to an inevitable inference that there is substantial compliance of the said condition. Thus the argument is rejected.
The last argument that till the contents of the Letter/Notification dated 24.12.1998 granting the benefit of past service are incorporated by making an amendment in the University Calendar, mere adoption by the Senate of the same is meaningless, is also liable to be rejected. The cited judgments in support of the said argument do not at all apply to the facts of the case.
(i) The Hon'ble Supreme Court in case titled as Jagdish Prasad Sharma etc. Vs. State of Bihar & Ors. 2013(8) SCC 633 was seized of the controversy was as to whether certain Regulations framed by the UGC had a binding effect on the Educational Institutions being run by the different States and even under State Enactments. In sum and substance, the matter was as to whether age of superannuation of teaching faculty in different VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #25# Universities and Colleges would automatically be enhanced to age of 65 years in view of the letter dated 31.12.2008 issued by the Government of India. The Hon'ble Supreme Court held that the final decision to enhance the age of superannuation of teachers within a particular state would be that of the state itself and the right of the commission to frame regulations having force of the law is admitted, however, the State Governments are also entitled to legislate with matters relating to education under entry 25 of list III and reference in this regard can be made to the paragraph 64 of the judgment of Hon'ble Supreme Court which reads as under:-
"64. We are inclined to agree with such submission mainly because of the fact that in the amended provisions of Section 67(a) it has been categorically stated that the age of superannuation of non teaching employees would be 62 years and, in no case, should the period of service of such non- teaching employees be extended beyond 62 years. A difference had been made in regard to the teaching faculty whose services could be extended upto 65 years in the manner laid down in the University Statutes. There is no ambiguity that the final decision to enhance the age of superannuation of teachers within a particular State would be that of the State itself. The right of the Commission to frame Regulations having the force of law is admitted. However, the State Governments are also entitled to legislate with matters relating to education under Entry 25 of List III. So long as the State legislation did not encroach upon the jurisdiction of Parliament, the State Legislation would obviously have VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #26# primacy over any other law. If there was any legislation enacted by the Central Government under Entry 25 List III, both would have to be treated on a par with each other. In the absence of any such legislation by the Central Government under Entry 25 List III, the Regulation framed by way of delegated legislation has to yield to the plenary jurisdiction of the State Government under Entry 25 of List III."
Further in paragraph 65 of the judgment the Hon'ble Supreme Court held that there can be no automatic application of the recommendations made by the commission without conscious decisions taken by the State on account of financial implications and the para 65 reads as under:-
"65. We are then faced with the situation where a composite scheme has been framed by the UGC, whereby the Commission agreed to bear 80% of the expenses incurred by the State if such scheme was to be accepted, subject to the condition that the remaining 20% of the expense would be met by the State and that on and from 1st April, 2010, the State Government would take over the entire burden and would also have enhanced the age of superannuation of teachers and other staff from 62 to 65 years. There being no compulsion to accept and/or adopt the said scheme, the States are free to decide as to whether the scheme would be adopted by them or not. In our view, there can be no automatic application of the recommendations made by the Commission, without any conscious decision being taken by the State in this regard, on VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #27# account of the financial implications and other consequences the case of those petitioners who have claimed that they should be given the benefit of the scheme dehors the responsibility attached thereto, must, therefore, fail."
(ii) That case reported as Dr. A.C. Julka & Ors. Vs. Panjab University & Ors. 2008(7) SLR, 198 was regarding the question of increase in age of superannuation from 60 to 62 and 62 to 65 years of the University teaching as well as non-teaching staff in terms of the UGC recommendations and Government of India letter dated 27.07.1998 and 06.11.1998. The petitioners therein were aggrieved by the decision dated 23.7.2002 taken by the Government of India whereby proposal sent for approval, necessary for making an amendment in the University Calendar, for increase in the age of superannuation as per the recommendations of the UGC duly adopted by the Syndicate and Senate of the University, was rejected while observing that 40% of the financial burden as a result of increase in age of superannuation had to be borne by the Punjab Government; but the Punjab Government having already refused to bear the burden, the Government of India was not in a position to agree with the proposal and thus the same was rejected.
Before a Division Bench of this Court an argument was raised by the petitioners that Panjab University is a Central University and thus the letter dated 28.7.1998 issued by the Government of India is applicable to the University; but the contention was rejected by this Court while holding that Panjab University after enactment of Reorganization Act acquired the character of Inter-State body corporate and cannot be termed as a Central University.
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CWP No.8417 of 2005(O&M) #28# The further question was regarding issuance of mandamus to the Panjab University to carry out necessary amendment in the regulation 17.3 of Chapter VI(A) of the Conditions of Service of University Employees framed under Section 31(2) (e) of the Panjab University Act, 1947 so as to increase the age of superannuation from 60 to 62 years, as otherwise provided under Regulation 17.3, which reads as under:-
" 17.3. All whole-time members of the teaching staff, as defined in Regulation 1.1 of Chapter V (A), shall retired on attaining the age of 60 years and no extension in service shall be granted."
This Court in para 23 of the judgment held that no mandamus can be issued to carry out necessary amendment in the Regulation 17.3 which prescribed the age of superannuation of the teachers of the Panjab University as 60 years.
(iii) In CWP No.20646 of 2011 titled as KRM DAV College Nakodar Vs. State of Punjab & Anr. decided on 06.08.2013 the controversy was regarding claim of enhancement of age of superannuation of teaching faculty of Colleges and Universities to 65 years as well as salary and to provide financial assistance in terms of UGC Regulations notified as Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the maintenance of Standards in Higher Education 2010 and the following three questions were framed by this Hon'ble Court:-
"1. that the age of superannuation of teaching faculty of the colleges and universities situated in the State of Punjab and Haryana stands enhanced to 65 years in terms of VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh CWP No.8417 of 2005(O&M) #29# UGC Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education 2010 (for short the Regulations);
2. that the State Government is bound to pay salary as per the UGC scale to the unaided staff of the aided colleges; and
3. that the State Government is bound to provide financial assistance to the teaching facility of the unaided colleges so as to comply with the requirement of pay scales as per the UGC Regulations.
While deciding first question this Court held that the Regulations framed by the UGC relate to Entry 66 List I of the Constitution in the Seventh Schedule but it does not empower the Commission to alter any of the terms and conditions of the enactments by the States under Article 309 of the Constitution. Under Entry 25 of the List III, the State is entitled to enact its own laws with regard to the service conditions of the teachers and other staff of the Universities and colleges within the State and the same will have effect unless they are repugnant to any central legislation. It was also held that the State Government is at liberty to frame its own laws relating to education in the State and is, therefore, not bound to accept or follow the Regulations framed by the Commission. Thus came to the conclusion that the claim of the members of the teaching faculty seeking enhancement in age of superannuation on the basis of Regulations framed by the UGC is without any merit.VINAY MAHAJAN
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CWP No.8417 of 2005(O&M) #30# Regarding questions nos.2 & 3 also this Court came /to the conclusion that there cannot be automatic application of recommendations made by the Commission without conscious decisions being taken by the State in this regard on account of the financial implications and thus dismissed the Writ petition.
A careful perusal of the aforesaid judgments reveals that the UGC Regulations had made recommendations on issues which were already provided for to the contrary in the Statutes concerned and thus requiring amendment. The UGC recommendations ipso facto could not be made operative in such situations. However, in the present case the facts are different as there is no provision to the contrary in the University Calendar, brought to the notice of the Court, which requires amendment even after due adoption of the UGC recommendations by the Senate of the University providing for grant of benefit of past service towards placement of Lecturer in the Senior Scale. Therefore, there is no legal impediment in implementing the Notification dated 24.12.1998 after its due adoption by the Senate/University.
22. In view of the above discussion, the Writ petition is allowed and impugned order dated 26.4.2004 (P-5) is set aside. The decision of the respondent-University not to count the past service of the petitioner as Lecturer towards placement in the Senior/Selection Grade in terms of the Letter/Notification dated 24.12.1998(P-8) is declared illegal. It is further declared that the petitioner is entitled to modification of the order dated 24.3.2005 (Annexure P-7) in terms of the considering her date of eligibility for placement in the Senior Scale of Lecturer as 11.6.2001 by counting her claimed previous regular service, with all consequential benefits. VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh
CWP No.8417 of 2005(O&M) #31# Accordingly, a Writ of Mandamus is issued to the Respondents/Competent Authority to pass/issue appropriate/modified order granting such relief with all consequential benefits i.e. arrears of salary etc., within four weeks from the receipt of certified copy of this order. Thereafter, consequential benefits would be released within next eight weeks. The petitioner is also held entitled to costs, which are quantified as Rs.10,000/- to be paid by the University.
( JASWANT SINGH ) JUDGE 17th September, 2014 Vinay VINAY MAHAJAN 2014.12.16 14:42 I attest to the accuracy and authenticity of this document at Chandigarh