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WPs 2444, 2471 & 2806/19 8 Common Judgment

7. Shri A.C.Dharmadhikari, learned counsel for the petitioner in Writ Petition No. 2444/2019 submitted that as per Statute 52 the eligibility criteria for consideration of a candidate prescribed minimum API score based on the norms depicted in Appendix II while for the purposes of evaluation for promotion the actual API score was material. However, the promotions in question were made by taking into consideration the minimum API score as 300. As a result the appropriate criteria for the purposes of evaluation which was the actual API score as per Appendix II of Statute 52 had not been taken into consideration. This had the effect of ignoring the claim of meritorious candidates like the petitioner. He submitted that it was undisputed that the actual API score of the petitioner was more than the respondents who were promoted. It was then submitted that those candidates having higher API score than the petitioner had not been impleaded as the petitioner was not in a position to challenge their promotions, they being more meritorious than the petitioner. Since the promoted respondents had lessor API score than the petitioner, their promotion had been challenged. The respondents had also not pleaded the aspect of estoppel though said aspect was sought to be argued on their behalf. Restricting the zone of consideration to 1:2 resulted in ignoring the claim of meritorious candidates who fell in the zone of consideration as per the ratio of 1:5. This change in the ratio WPs 2444, 2471 & 2806/19 9 Common Judgment resulted in changing the criteria that was existing when the vacancies arose especially when the requirement was that promotions had to be made on the basis of merit and seniority. Referring to the representations dated 22.01.2019 and 27.01.2019 made by the petitioners, it was submitted that there was no question of any estoppel from challenging the illegal promotions made by the Selection Committee. It was thus submitted that the promotions granted to the respondent nos. 2 to 5 were liable to be set aside and in their place the petitioner was liable to be promoted.

8. Shri B.G.Kulkarni, the learned counsel for the petitioners in Writ Petition No. 2471/2019 in addition to the contentions referred to hereinabove submitted that the University erred in ignoring merit as a criteria for the purposes of making promotions. The criteria for evaluation as prescribed was merit and seniority and therefore minimum eligibility which was taken into consideration by the University while evaluating the merit of candidates was contrary to the Statutes. It was his submission that the actual API score was the foundation for the purposes of making evaluation on merit and thus fixing of benchmark at API score of 300 was illegal. Referring to the provisions of Statutes 52 and 77 along with various Tables appended to the said Statutes, it was submitted WPs 2444, 2471 & 2806/19 10 Common Judgment that the same indicated the manner in which the merit of a candidate had to be determined. The passing of resolutions dated 03.1.2019 and 07.01.2019 by the Academic Council as well as the Executive Council respectively was contrary to the procedure prescribed and therefore no right accrued in favour of the respondent nos. 4 to 10 for sustaining the orders of promotion issued in their favour. Reference was also made to the stand taken by the University in Writ Petition No. 5769/2010 [Madan S/o Nanaji Jadhav vs. Dr. Panjabrao Deshmukh Krishi Vidyapeeth, through its Registrar & Others ]. Referring to the order dated 19.07.2012 it was pointed out that it was the stand of the University therein that the promotions had to be made on the basis of merit. The promotions that were under challenge in that writ petition were sought to be supported by contending that the candidates promoted were more meritorious than the petitioners. It was therefore not permissible for the University to now change the criteria. Reference was also made to the representation made by the petitioners on 27.01.2019 raising various objections to the change in criteria for promotion. In support of his submissions the learned counsel placed reliance on the decisions in Union of India & Others Vs. Lt. Gen. Rajendra Singh Kadyan & Another [(2000) 6 SCC 698], Premlata Joshi Vs. Chief Secretary, State of Uttarakhand & Others [(2013) 16 SCC 482], B.Amrutha Lakshmi Vs. State of Andhra Pradesh & Others [(2013) 16 SCC 440] and Major Yogendera Narain Yadav Etc. Vs. Shri WPs 2444, 2471 & 2806/19 11 Common Judgment Bindeshwar Prasad & Others [(1997) 2 SCC 150]. It was thus submitted that the orders of promotion issued in favour of the respondent nos. 4 to 10 were liable to the set aside and the petitioners ought to be promoted in their place.

10. Shri Abhay Sambre, learned counsel for the University opposed all the aforesaid submissions and supported the promotion of the WPs 2444, 2471 & 2806/19 14 Common Judgment concerned respondents. At the outset, it was submitted that the petitioner no.1 in Writ Petition No. 2806/2019 was not in the zone of consideration as eligible candidates in the ratio of 1:2 had been considered and therefore she had no right to challenge the promotions as made. Similarly, the promotion of Shri S.T.Kendre had not been challenged by the petitioners and thus the said writ petition was not liable to be entertained. As regards Writ Petition No.2444/2019 it was submitted that the petitioner was not in the zone of consideration as she was placed at serial no.27. As five posts were to be filled in by promotion, there was no reason to entertain the grievance of the petitioner. The zone of consideration at ratio of 1:2 as applied was in view of the resolution dated 07.01.2019 passed by the Executive Council. He then submitted that the score obtained as indicated by the API was not the sole criterion for the purposes of determining the merit of the respective candidates. Since Assistant Professors under the University were required to serve at different places, some of which were urban areas while some were rural areas, all eligible Assistant Professors were not similarly situated. It was possible that an Assistant Professor serving at an urban place on account of avenues available to him could be in a position to have a higher API score while an Assistant Professor serving at a rural place would not get sufficient opportunities to improve his API score. It was for that purpose that API score of 300 was determined in accordance WPs 2444, 2471 & 2806/19 15 Common Judgment with the Statutes while considering the respective merit of the eligible candidates. It was then submitted that the petitioners having participated in the selection process while effecting promotions they were now estopped from contending that the right criteria had not been adopted. On the contrary as per the notice published by the University the petitioners had applied for being considered for promotion and on not being so promoted, they had sought to challenge the promotion process. It was denied that the University had changed its stand from the one taken in Writ Petition No. 5769/2010. Moreover since all promoted candidates had not been joined as respondents, it would not be permissible to interfere with the promotion process in their absence. On these counts, it was submitted that the challenge as raised was not liable to be accepted. In support of his submissions, the learned counsel placed reliance on the decisions in Ranjan Kumar & Others Versus State of Bihar & Others [(2014) 16 SCC 187] and Pragjyotish Gaonlia Bank (now Known as Assam Gramin Vikas Bank) & Another Versus Brijlal Dass [(2009) 3 SCC 323].

11. Shri Sunil Manohar, learned Senior Advocate for the respondent nos. 4 to 10 in Writ Petition No. 2471 of 2019 and respondent nos. 2 and 3 in Writ Petition No. 2806 of 2019 submitted that the promotions as effected by the University were in accordance with WPs 2444, 2471 & 2806/19 16 Common Judgment Statutes 52 and 77. The criteria for promotion which was merit and seniority was applied and merely because the minimum API score of 300 was initially taken into consideration, it could not be said that the aspect of merit had been ignored. Each candidate promoted had more merit than the petitioners and it could not be said that consideration of API score of 300 indicated absence of merit. The resolution of the Executive Council dated 07.01.2019 was required to be considered in the proper perspective and it was clear that if meritorious candidates were not available in the zone of consideration of 1:2 then promotions ought to be made considering the seniority of the eligible candidates. There was no question of calling upon all eligible candidates who were not in the zone of consideration. He also referred to the resolution dated 22.07.2019 by the Executive Council in that regard. Since the petitioners had applied for consideration for their cases for promotion after the resolution dated 07.01.2019 and as they had participated in the selection process, it was not now permissible for them to challenge the promotions as made. The adoption of the ratio 1:2 was also not challenged by the petitioners and hence there was no question of going into legality or otherwise of the procedure adopted by the University while making the promotions. The Court would be slow in undertaking any exercise of examining the respective merit of the candidates. He thus submitted that the criteria as adopted by the University was legal and the promotions as made did not WPs 2444, 2471 & 2806/19 17 Common Judgment deserve to be interfered with as the same were in accordance with law.