Karnataka High Court
Sri S C Chandreshekar vs State Of Karnataka on 25 July, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY 2017
BEFORE
THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY
WRIT PETITION NOS.37906-37910/2012 AND
WRIT PETITION NOS.43589-43596/2012 (S-PRO)
BETWEEN:
1. Sri. S.C. Chandrashekar S/o Channegowda,
Aged about 61 years, Associate Professor of
Plant Pathology, College of Agriculture,
UAS, GKVK, Bengaluru-560 065.
2. Sri. M. Srikantaiah S/o Late N. Channaiah,
Aged about 61 years, Associate Professor,
Agri. Micro Biology, College of Agriculture,
UAS, GKVK, Bengaluru-560 065.
3. Sri. R. Chandru S/o K.G. Rajendraswamy,
Aged about 61 years, Associate Professor of
Biochemistry, PHT Scheme, UAS, GKVK,
Bengaluru-560 065.
4. Sri. G. Mallikarjun S/o G. BAsappa,
Aged about 56 years, Associate Professor of
Statistics, College of Agriculture, UAS,
GKVK, Bengaluru-560 065.
5. Sri. M.N. Narasimha Reddy S/o Narayana Reddy,
Aged about 61 years, Associate Professor of
Horticulture, ARS, Chintamani,
Chickballapur District.
6. Sri. N. Janakiram S/o Narayanaswamy,
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Aged about 61 years, associate Professor of
Agronomy, ARS Chintamani,
Chickballapur District.
7. Sri. Honnaiah S/o Late T.H. Brahmeshwaraiah,
Aged about 56 years, Associate Professor of
Agri. Economics, College of Agriculture,
UAS, GKVK, Bengaluru-560 065.
8. Sri. K.N. Chandregowda S/o Late K. Narayanappa,
Aged about 55 years, Associate Professor of
Agri. Extension, Staff Training Unit, UAS,
Hebbal, Bengaluru-560 040.
9. Sri. S. Gangadharaiah S/o Siddaiah,
Aged about 58 years, Associate Professor of
Genetics & Plant Breeding, VC Farm,
Mandya, Mandya District.
10. Sri. R. Venkatappa S/o Late Ramaiah,
Aged about 59 years, Associate Professor of
Agri. Extension, Farmers Training Institute,
UAS, GKVK, Bengaluru-560 065.
11. Dr. H.B. Rabindra S/o H. Lakshmikantha Rao,
Aged about 53 years, Associate Professor of
Plant Pathology, Zonal Agricultural Research
Station, Navile, Shivamogga, Shivamogga District.
12. Sri. M.K. Basavaraj S/o Kariyappa,
Aged about 60 years, Associate Professor of
Plant Pathology, Zonal Agricultural Research
Station, Navile, Shivamogga.
13. Sri. B. Shivayogeshwar S/o B. Veerabasappa,
Aged about 59 years, Associate Professor of
Entomology (Retd.), Door No.148A, 1st Cross,
Vidyanagaa, Shivamogga, Shivamogga District.
...PETITIONERS
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(By Sri.V.Lakshminarayana, Sr. Adv. for
Smt. Shilpa Rani, Advocate for Balaji
Associates, Advocates)
AND:
1. State of Karnataka
Represented by the Chief Secretary,
Vidhana Soudha, Dr. Ambedkar Road,
Bengaluru-560 001.
2. State of Karnataka,
Represented by the Principal Secretary to
Department of Agriculture, M.S. Building,
Dr. Ambedkar Road, Bengaluru-560 001.
3. The Vice Chancellor,
University of Agricultural Sciences,
G K V K, Bengaluru-560 065.
4. University of Agricultural Sciences,
G K V K, Bengaluru-560 065.
By its Registrar.
... RESPONDENTS
(By Smt. Kavitha H.C., HCGP;
Sri. M. Sreenivasa, Advocate for R-3 & 4)
These Writ Petitions are filed under Articles 226 and
227 of the Constitution of India praying to quash the
endorsement dated 04.05.2012 issued by the University of
Agricultural Sciences, Bengaluru produced at Annexure-S,
and direct the respondents to consider the case of the
petitioners in accordance with clause 10(c) of the
Government Order dated 14.01.2000 and Clause 1.0 (C) and
2.5 of University Order dated 15.07.2005 copies of which are
produced at Annexures-G & H.
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These Writ Petitions coming on for further hearing,
this day, the court made the following:
ORDER
Some of the petitioners in a batch of Writ Petition Nos.31821-31837/2011 sought for quashing the direction dated 13.10.2011 passed by the Government of Karnataka and the Chancellor of the University of Agricultural Sciences and to consider their case for promotion under Career Advancement Scheme (hereinafter referred to as the "Scheme" for brevity) in terms of the order dated 15.07.2007. The consideration resulted in rejection of the case of petitioners in the said writ petitions and some of them are petitioners in the present writ petitions. Rejection of their case for consideration for promotion to the post of Professor is the subject matter in these writ petitions.
2. The petitioners are seeking to set aside the order of rejection dated 04.05.2012 as per Annexure-S -5- and further they have sought a direction to the respondents to consider their case in accordance with Clause 10(c) of the Government Order dated 14.01.2000 and Clause 1.0 (c) and 2.5 of the University Order dated 15.07.2005 as per Annexures-A & B, respectively.
3. The petitioners are working as Associate Professors and some of them are already retired from service. It is their case that they are entitled to be promoted as Professor in accordance with UGC Regulations and same has been implemented by the State Government by order dated 14.01.2000 and the order passed by the University of Agricultural Sciences dated 15.07.2005. The petitioners are now entitled for promotion to the cadre of Professors under the Regulation dated 14.01.2000, which provides for Career Advancement Scheme, according to which they are eligible to be promoted to the cadre of Professor. The -6- requisite qualification under Career Advancement Scheme of Clause 10(c) is as under:
"The Associate Professor/Reader with a minimum of eight years of service will be eligible for consideration for appointment as Professors from the date of appointment as Associate Professor".
It is contended that petitioners are eligible to be considered under the Career Advancement Scheme for promotion to the cadre of Professors. In order to appreciate the case of the petitioners, learned Senior counsel submits that the petitioners on various dates were promoted as Associate Professors, which could be seen from the table as under:
Sl. Name of the petitioners Date on which No. promoted as Associate Professor 1 Sri S C Chandrashekar 08.12.1990 2 Sri M Srikantaiah 11.03.1991 3 Sri R Chandru 27.02.1991 -7- 4 Sri G B Mallikarjuna 21.09.1992 5 Sri M N Narasimha Reddy 08.09.1995 6 Sri N Janakiram 04.041998 7 Sri Honnaiah 03.02.1994 8 Sri K N Chandregowda 29.10.1999 9 Sri S Gangadharaiah 01.05.1994 10 Sri R Venkatappa 08.11.1991 11 Sri H B Rabindra 20.01.1996 12 Sri M K Basavaraj 07.02.1993 13 Sri B S Shivayogeshwar 12.09.1994
4. It is further contended that on the date of promotion to the post of Associate Professors the petitioners have completed eight years of service, which is the requisite qualified service for considering for the purpose of promotion to the cadre of Professor. Despite the fact that petitioners are eligible under the Career Advancement Scheme for promotion to the post of Professors, respondents did not consider their case for -8- promotion. It is also submitted that the University of Agricultural Sciences has issued a notification dated 15.07.2005, which stipulates Regulation under Clause 1.0(c) to the effect that Associate Professor/Reader with a minimum of eight years of service will be eligible for consideration for appointment as Professors, which is similar to the Regulation dated 14.01.2000. Under Clause 2.5 of the Government Order dated 15.07.2005, which is in respect of promotion, it is submitted that the requirement of eight years of service as Associate Professor/Reader, no doubt is mandatory to consider for the post of Professor. A Lecturer/Assistant Professor (Selection Grade) would be promoted as Professor only after completion of eight years of service. Clause 2.5, which provides for promotion to the post of Professor is as under:
".... since eight years service as Associate Professor/Reader is mandatory for being considered for the post of Professor...."-9-
5. As per this clause also, the petitioners are eligible for promotion to the post of Professor since they have already completed eight years of service from the date of promotion as Associate Professor. This clause has been mis-interpreted by the respondents and promotion to them has been deprived. What was required for promotion from the cadre of Lecturer/Assistant Professor (Selection Grade) is they would be promoted as Professors only after they complete eight years of service after they become Assistant Professor/Reader on acquiring Ph.D degree. The requirement of Ph.D degree as per this clause is not required for promotion to the post of Professor and Ph.D degree is required only for Lecturer/Assistant Professor (Selection Grade) and this clause has not been read properly. Under these circumstances, learned Senior counsel submits that the impugned clause deprived the petitioners from promotion and did not permit the
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scheme for promotion to the post of Professor which is in violation of Article 16(i) of the Constitution of India.
6. Learned counsel for respondent No.4 has emphasized the statement of objections to dismiss these writ petitions. He has supported the reasons assigned for rejecting the case of these petitioners and also some other petitioners, in which it has been clarified that unless a person possesses P.hD degree, he is not entitled for promotion to the post of Professor. In support of his case, learned counsel relied on the decision reported in AKOLE TALUKA EDUCATION SOCIETY & OTHERS V/S THE STATE OF MAHARASHTRA & OTHERS - 2016 (2) AIR (Bom) R 322. He referred to para No.15 and submitted that the P.hD degree is mandatory for promotion to the post of Professor. To emphasize his submission for requirement of P.hD degree for promotion to the post of Professor, learned counsel has also referred to the decision
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reported in SATISH KUNDANLAL AGARWAL V. THE STATE OF MAHARASHTRA - (2011) 113 (5) Bom LR 3388. He referred to para No.23, whereunder the requisite qualifications are governed by the Regulations issued by the ICAR and UGC. As per the regulations of ICAR and UGC, the Colleges/Universities are insisting eight years of service along with Ph.D degree is mandatory for promotion to the cadre of Professor. First aspect has been considered in various cases of this Court. Under these circumstances, learned counsel requests to dismiss the petitions. It is strong submission that these petitioners admittedly do not possess P.hD degree, which is mandatory requisite qualification for promotion to the post of Professor. Hence, the petitions lack merits.
7. Heard the learned counsel for both the parties.
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8. The petitioners were promoted as Associate Professors on different dates. In the cadre of Associate Professors, they have completed the requisite qualification for promotion to the post of Professor. For the purpose whether the petitioners are entitled or eligible for promotion, what is required to be noticed is the prevailing notification, which governs the field as on the date the petitioners become eligible. The petitioners become eligible after completion of eight years in the cadre of Associate Professor. Then the prevailing notification is the notification dated 14.01.2000, which clarifies the same in Clause 10 (c), which reads thus:
"10. Career advancement:
(a) Minimum length of service for eligibility to move into the grade of Lecturer with M.Phil and six years for others as Assistant Professor and into the Grade of Assistant Professor Selection Grade/ Lecturer Selection Grade/Associate Professor/Reader, the minimum of service
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as Lecturers Senior Scale Asst. Professor (Senior Scale) shall be uniformly five years.
(b) For movement into grades of Associate Professor Readers and above, the minimum eligibility criterion would be Ph.D. Those teachers without Ph.D can go up to the level of Assistant Professor (Selection Grade) Lecturer (Selection Grade).
(c) An Associate Professor/Reader with a minimum of eight years of service will be eligible for consideration for appointment as professor.
(d) For every upward movement, a selection process would be evolved for which appropriate guidelines for appointment would be laid down by the ICAR."
9. When there is prevailing notification, it is applicable more particularly to the petitioners, which has to be looked into. The provisions of notification
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dated 14.01.2000 makes it clear who are in the cadre of Associate Professor/Reader with a minimum of eight years service who will be eligible for consideration for appointment as Professor. The clause is very clear that there is no scope for interpretation other than what is available. On the date of consideration, Regulation dated 15.07.2005 came into force. The same has been produced as Annexure-B, wherein clause 1.0(c) is extracted for the purpose of convenience, as under:
"1.0 CAREER ADVANCEMENT
(a) Minimum length of service for eligibility to move into the grade of Lecturer (Senior Scale)/Assistant Professor (Senior Scale) would be four years for those with Ph.D, five years of those with M.Phil and six years for others as Assistant Professor/Lecturer and for eligibility to move into the grade of Assistant Professor (Selection Grade)/ Lecturer (Selection Grade)/Associate Professor/Reader, the minimum length of service as Lecturer (Senior Scale)/Assistant
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Professor(Senior Scale) shall be uniformly five years.
(b) For movement into grades of Associate Professor/Reader and above, the minimum eligibility criterion would be Ph.D. Those teachers without Ph.D can go up to the level of Assistant Professor (Selection Grade)/Lecturer(Selection Grade).
(c) An Associate Professor/Reader with a minimum of eight years of service will be eligible for consideration for appointment as a Professor.
(d) The Selection Committee for Career Advancement shall be the same as those for direct recruitment for each category.
(e) The existing scheme of Career Advancement for non-academic staff namely - Assistant Director of Physical Education/Assistant Registrar, Assistant Librarian would continue. (This Scheme is not implemented in the University)."
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10. As per this clause, as it is in case of notification dated 14.01.2000, the persons who are in the cadre of Associate Professor/Reader with a minimum of eight years are eligible for consideration for appointment of Professor. Similarly Clause 2.5 is extracted for the purpose of convenience, as under:
"2.5 PROFESSOR (PROMOTION) In addition to the sanctioned position of Professors which must be filled in through direct recruitment through all India advertisements, promotions may be made from the post of Reader/Associate Professor to that of Professors after eight years of service as Reader/Associate Professor.
Since eight years of service as Associate Professor/Reader is mandatory for being considered for the post of Professor, a Lecturer/Assistant Professor (Selection Grade) would be promoted as Professor only after he completes eight year service after he becomes Associate Professor/Reader on acquiring Ph.D
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degree. A Professor already appointed under direct recruitment is not eligible for promotion under Career Advancement."
This further clarifies the fact that for the post of a Professor, "Promotions may be made from the post of Reader/Associate Professor to that of a Professor after eight years of service as Reader and Associate Professor".
11. The very similar provision was available in notification dated 14.01.2000 under Clause 10(c). A Lecturer/Assistant Professor (Selection Grade) would be promoted as Professor only after he completes eight years of service and after he becomes Associate Professor/Reader on acquiring Ph.D. The second portion of the very clause is not applicable to the petitioners, since they have already completed eight years of service in the cadre of Associate Professors. The requirement of Ph.D as it is available in Clause 2.5
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is only to the cadre of Lecturer/Assistant Professor (Selection Grade) for consideration to the post of Professor on promotion. On plain reading of the case of the respondent that requirement of Ph.D is not only for Lecturer/Assistant Professor(Selection Grade) but also for Associate Professor/Reader is nothing but a mis- interpretation by the respondents. A plain reading of these two notifications dated 14.01.2000 and 15.07.2005, respectively, provides for completion of eight years of service in case of a person eligible for promotion to the post of Professor from the cadre of Associate Professor/Reader. Thus, notification dated 15.07.2005 is applicable for Professors and cannot be made applicable retrospectively at the time of consideration of present notification dated 15.07.2005, which is made applicable under this notification also. It does not require acquiring Ph.D for promotion to the post of Professor from the cadre of Associate Professor. When this is in a plain manner, it is not required for
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interpretation and understanding. However, this has been considered for the disadvantage of these petitioners. Hence, impugned action is arbitrary. The judgment of Bombay High Court referred by the learned counsel for respondents is with reference to 2010 Regulations. This Regulation is not at all applicable to the petitioners. It is made clear that the application of any notification or order or law, it should be on prospective date and unless it is made retrospectively, notification dated 14.01.2000 is squarely applicable to these cases and case of the petitioners shall have to be considered as par clause 10(c) of the said notification and even notification dated 15.07.2005 is also on the same line as of notification dated 14.01.2000. Under these circumstances, what is not there in this notification has been read into by the respondents, which is arbitrary. Under these circumstances, notification dated 05.02.2012 as per Annexure-S requires to be set aside.
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12. Learned counsel for respondents made a submission that the guidelines and clarifications issued by the ICAR and UGC is applicable, which requires Ph.D as mandatory qualification. The above submission was considered in Writ Petition No.17/2008 (RES) dated 18.11.2011, in which the University of Agricultural Sciences, Dharawad is respondent No.1, wherein this Court held that :
"5. The learned counsel for the respondents on the other hand would oppose the petition and place reliance on Annexure-"R2" which is a clarification issued by the ICAR to the effect that a pass in NET is compulsory for selection to the post of Assistant Professors. This apparently is of the year 2006 whereas there are notifications issued by the UGC itself. However, in view of the fact that the UGC has categorically specified that it would not be compulsory in so far as the candidates who possess Ph.D to pass NET examination, will have to be given effect to, and the clarification
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issued by the ICAR would not be consistent with the guideline issued by the UGC, which is the competent body to prescribe these guidelines, so there is no dispute that ICAR is subordinate to UGC and would be bound by the guidelines issued by the UGC. In that view of the matter, the petition would have to be allowed in the face of it.
13. In the light of the observations made by this Court in earlier aforementioned writ petitions, the submission of the learned counsel for respondents is to be rejected.
Accordingly, these writ petitions are allowed.
Respondent-University to consider the case of the petitioners in accordance with the notifications dated 14.01.2000 and 15.07.2005 vide Annexures-A and B respectively, with reference to the order passed in W.P.No17/2008 dated 18.11.2011 at para No.5.
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Respondent-University to communicate this order to the Zonal Agricultural Research Station, Shivamogga in case of petitioner Nos.11, 12 and 13, since they are working on bifurcation at Zonal Agricultural Research Station, Shivamogga. In turn, Zonal Agricultural Research Station, Shivamogga is also directed to consider the case of the petitioners in accordance with law and pass appropriate orders.
Respondent-University and Zonal Agricultural Research Station, Shivamogga are directed to comply with this order within three months from the date of receipt of copy of this order.
Sd/-
JUDGE BMC/AG