Uttarakhand High Court
WPSB/631/2022 on 16 April, 2024
Author: Pankaj Purohit
Bench: Manoj Kumar Tiwari, Pankaj Purohit
Office Notes,
reports, orders
SL. or proceedings
Date COURT'S OR JUDGES'S ORDERS
No or directions and
Registrar's order
with Signatures
WPSB No. 629 of 2022
with
WPSB No. 630 of 2022
WPSB No. 631 of 2022
WPSB No. 632 of 2022
Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.
Mr. Ajay Veer Pundir, Advocate for the petitioners.
2. Mr. Subhash Upadhyay, Advocate for the respondents.
3. Since common questions of law and fact are involved in these writ petitions, therefore they are being heard together and are being decided by a common judgment. However, for the sake of brevity, facts of Writ Petition (S/B) No. 629 of 2022 alone are being considered and discussed.
4. In WPSB No. 629 of 2022, petitioner has sought the following relief:-
(i) Issue a writ, in the nature of certiorari quashing the impugned order dated 12.10.2022 issued by the Respondent No. 1 and impugned decision taken by the Respondent No. 2 only to the extent of clause no. 32.4(1) of 32nd meeting of BOG held on 10.09.2022 (contained as Annexure Nos. 6 & 7 to the writ petition respectively)
(ii) Issue a writ, order or direction in the nature of mandamus commanding directing the respondents to give notional promotion to the petitioner on the post of Professor in the pay scale of Rs. 37400-67000-10000 w.e.f. 24.12.2012.
(iii) Issue a writ, order or direction in the nature of mandamus commanding directing the Respondent No. 1 to give all benefits, including arrears of salary and allowances etc. as admissible time to time to the petitioner on the post of Professor w.e.f. 24.12.2012 along with interest @ 9% per annum from the date of its due till the date of actual realization.
5. Writ Petition (S/B) No. 629 of 2022 is filed by Dr. Anil Kumar Gautam, who was given regular appointment as Assistant Professor in G.B. Pant Institute of Engineering and Technology, Pauri Garhwal (in short 'GBPIET'), w.e.f. 24.12.2009. All India Council for Technical Education (from hereinafter referred to as 'AICTE') introduced Career Advancement Scheme for teachers and other academic staff serving in Technical Institutions by framing regulations, which were notified on 08.11.2012.
6. As per these Regulations, Assistant Professor may be promoted as Associate Professor, after putting in prescribed length of service, if found suitable by the Selection Committee. Similarly, Associate Professor may be promoted as Professor, after putting in prescribed length of service, if found suitable by the Selection Committee. Composition of the Selection Committee is also given in the notification dated 08.11.2012.
7. Clause 2.16 of the notification issued by AICTE provides that if the candidate does not succeed in the first assessment, but succeeds in the subsequent assessment, his/her promotion will be deemed to be from the later date of successful assessment.
8. Director, GBPIET issued an order dated 19.05.2022, whereby Dr. Anil Kumar Gautam (petitioner herein) was promoted to the post of Professor under Career Advancement Scheme w.e.f. 24.12.2012. It was mentioned in the order that Dr. Anil Kumar Gautam had submitted application for promotion under Career Advancement Scheme on 21.12.2021 and he was interviewed by the Selection Committee on 07.01.2022. The Director, subsequently passed another order on 12.10.2022, whereby petitioner was informed that the Board of Governors in its 32nd meeting held on 10.09.2022 has decided to promote him as Professor under Career Advancement Scheme w.e.f. 07.01.2022, as petitioner was not selected in the CAS interview, held as per the AICTE Regulations, in 2018. Thus, the stand taken was that since petitioner was unsuccessful in his first attempt, therefore, in his second attempt, he can be promoted only from the date of subsequent interview in which he was declared successful.
9. The Minutes of Meeting of Board of Governors held on 10.09.2022 are enclosed with the writ petition as annexure 7. Perusal thereof reveals that in view of complaints, an Inquiry Committee was constituted to look into the irregularities in the matter of promotion under Career Advancement Scheme by the Vice- Chairman vide letter dated 30.05.2022 and the report of the Inquiry Committee and also reply of the Director of the Institute were placed before the Board of Governors and the Board has taken decision that since petitioner was not successful in the selection for promotion under Career Advancement Scheme held in 2018, therefore, as per AICTE Regulations, he can be promoted to the post of Professor only with effect from the date he succeeds in the subsequent interview.
10. Since subsequent interview was held on 07.01.2022, in which petitioner was selected and recommended for promotion, therefore, his date of promotion was corrected as the date of subsequent interview i.e. 07.01.2022, which is in consonance with Clause 2.16 of AICTE Regulations.
11. Learned counsel for petitioner contends that since petitioner was promoted by the Director, as Professor w.e.f. 24.12.2012, therefore, the date of his promotion could not have been altered to 07.01.2022.
12. Learned counsel for GBPIET, however, submits that petitioner was wrongly given promotion to the post of Professor w.e.f. 24.12.2012 by overlooking the fact that as per notification issued by AICTE in March, 2010 and Government Order dated 26.07.2011 issued by State Government, petitioner was entitled to be designated as Associate Professor only from 24.12.2012, therefore, he could not have been promoted as Professor from the same date i.e. 24.12.2012, for want of eligibility. He further submitted that petitioner participated in the selection for promotion, as Professor under Career Advancement Scheme held in 2018 and he was unsuccessful in the said selection, therefore, in view of provision contained in AICTE Regulations notified on 08.11.2012, petitioner could not have been promoted with retrospective effect and he could be promoted only from the date of successful assessment, i.e., 07.01.2022.
13. Clause 2.16 of the notification dated 08.11.2012 issued by AICTE is extracted below for ready reference:-
"2.16 If the candidate does not succeed in the first assessment, but succeeds in the subsequent assessment, his / her promotion will be deemed to be from the later date of successful assessment."
14. Learned counsel for GBPIET has referred to Minutes of the Selection Committee Meeting, which met on 27.05.2018, which are on record as annexure-8 to the writ petition. From the Minutes, it is revealed that although petitioner appeared before the Selection Committee for interview, however, he was not found suitable; thus, he could not have been promoted as Professor from 24.12.2012 in view of provision contained in Rule 2.16 of AICTE notification.
15. Learned counsel appearing for GBPIET submits that the order dated 19.05.2022 was issued by the Director, without obtaining approval from the Board of Governors, which is the competent authority to take decision in the matter and subsequent order dated 12.10.2022 was issued by the Director in view of decision taken by Board of Governors. Thus, he submits that earlier order dated 19.05.2022, which was issued by Director, without approval from the Competent Authority, was non-est in the eyes of law and, by the subsequent order issued with the approval of Board of Governors, petitioner was promoted as Professor from the date of his successful assessment by the Selection Committee.
16. We find substance in the submission made by learned counsel for the respondents. Since Board of Governors is the highest decision making body in the Institute, therefore, the Director could not have taken unilateral decision to promote petitioner retrospectively, that too from a date when he had not completed the prescribed length of service as Associate Professor. Since 'Career Advancement' is governed by Regulations framed by AICTE, therefore, nobody, not even the Board of Governors, can go contrary to the provisions of those Regulations. We find force in the submission made by learned counsel for the respondents that the then Director of the Institute had given undue favour to certain persons, including the petitioner, and had also filed sketchy counter affidavits in the writ petitions.
17. The order, whereby petitioner was promoted as Professor w.e.f. 24.12.2012, is in teeth of Clause 2.16 of AICTE Regulations, therefore, on the intervention of Board of Governors, the date of promotion was rightly corrected as 07.01.2022. There cannot be any estoppel against statute, since promotion earlier granted to petitioner was contrary to the statute, therefore, the mistake was corrected by the Board of Governors and the Director simply conveyed the decision of Board of Governors to the petitioner. Thus, there is no scope for interference in the matter.
18. Learned counsel for petitioner then contended that the selection in 2018 for promotion as Professor under Career Advancement Scheme was not held as per AICTE Regulations; assessment of petitioner's merit was made based on Table-II(C), which should have been made on the basis of Table-II(B).
19. The said plea is not available to petitioner now. Petitioner could have challenged the selection held in 2018 and also the criteria adopted in the said selection at an appropriate time, however, he never challenged the same before any forum.
20. In this writ petition also, petitioner has neither sought any relief against earlier selection held in 2018 nor in his pleadings, he has questioned the mode of selection adopted by the Selection Committee in 2018. Thus, it is too late in the day for the petitioner to question the selection held in 2018. The fact of the matter is that petitioner was unsuccessful in his earlier attempt for promotion as Professor under Career Advancement Scheme; therefore, as per the AICTE Regulations, he can be promoted only from the later date of successful assessment.
21. By the impugned order, the date of promotion of petitioner has been corrected as the date of his subsequent interview held in 2022. It is a case of correction of mistake. No prejudice is caused to the petitioner. Thus, the order dated 12.10.2022 issued by Director cannot be faulted.
22. Accordingly, writ petitions are devoid of merit, hence the same deserve to be dismissed and are hereby dismissed.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.) 16.04.2024 Navin