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Madhya Pradesh High Court · body

2012 DIGILAW 891 (MP)

D. J. Killedar v. Shri G. S. I. T. S.

2012-09-13

S.C.SHARMA

body2012
JUDGMENT : The petitioners before this Court have filed this present petition being aggrieved by the action of the respondent Nos. 1 and 2 in taking steps in the matter of appointment of Head of the Department, Civil Engineering at Shri Govindram Seksaria Institute of Technology and Science (SGSITS), Indore. 2. The petitioners' contention is that they were appointed as Lecturers and promoted to the post of Readers and Professors. It has been stated that the petitioner No. 1 was appointed as Lecturer in year 1982, Reader in year 1989 and Professor in the year 1998, the details of other teachers are also on record. The petitioners' contention is that the respondent No. 3 was appointed as Lecturer in Applied Geological Department on 1-9-1985 and he was not appointed in the Department of Civil Engineering. It has been further stated that the respondent No. 3 was appointed as a contractual Reader by an order dated 19-4-1989 in the Remote Sensing Cell, however, an order was passed on 1-5-1995 reverting him to the post of Lecturer. It has been further stated that a writ petition being W.P. No. 468/96 was preferred by the respondent No. 3 and the same was dismissed by this Court vide an order dated 25-6-2001, meaning thereby, he was reverted back to the post of Lecturer. Thereafter, an LPA was preferred and the same was registered as L.P.A. No. 225/01 and during the pendency of the aforesaid LPA, the respondent No. 3 was promoted under the Career Advancement Scheme on 14-1-2003 and the LPA was withdrawn keeping in view the promotion to the post of Professor in respect of respondent No. 3. The petitioners' contention is that the respondent No. 3 is not a member of the Civil Engineering Department and he does not possess post graduation degree in Civil Engineering, therefore, his promotion to the post of Reader and subsequent promotion to the post of Professor are bad in law. 3. The petitioners have placed reliance upon the recruitment rules known as Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990 and the contention of the learned counsel for the petitioners is that all the petitioners, who are holding Ph.D. in Civil Engineering were entitled for grant of promotion keeping in view the recruitment rules which prescribed for Masters degree in Engineering/Technology. The petitioners are also aggrieved by the order promoting the respondent on the post of Professor which was passed on 14-1-2003. 4. A reply has been filed on behalf of the respondent Nos. 1 and 2 and the contention of the respondent Nos. 1 and 2/Institute is that the respondent No. 3 was appointed as a Lecturer in the year 1985, Reader in the year 1989 and was promoted to the post of Professor in the year 2003 w.e.f. 9-10-1998. It has been argued before this Court that the first gradation list reflecting positions in respect of the Institute that too in respect of the teachers, was published in the year 1995 and the petitioner Nos.1 and 2 were shown juniors to the respondent No. 3. It has been further stated that the gradation lists were also published in the year 2005, 2006, 2007, 2008, 2009 and 2010 and again the respondent No. 3 was shown senior to the petitioners. 5. It has also been stated that the Geology is one of the subjects under the department of Civil Engineering and there is no independent department of Geology in the Institute, therefore, the respondent No. 3 being a member of the department of Civil Engineering was promoted prior to the petitioners vide an order dated 14-1-2003. It has been further argued before this Court that the promotion orders of the years 1989 and 2003 are being challenged in the present case, therefore, the present writ petition suffers from delay and laches and the same deserves to be dismissed. 6. It has been further argued before this Court that one of the petitioners namely-Dr.(Mrs.) Uttamasha Gupta, who was one of the members of the governing body, which has considered the promotion for the post of professors in the year 2003 and she was very much aware of the proceeding, which took place in respect of the respondent No. 3, but at that point of time, no objection was raised by the petitioner and the objection is being raised in the year 2010. The respondent No. 3 is senior and therefore, he is being posted as Head of the Department. 7. The respondent No. 3 is senior and therefore, he is being posted as Head of the Department. 7. A reply has been filed on behalf of the respondent No. 3 and the stand of the respondent No. 3 is that he was initially appointed as a Teaching Assistant in Geology under the Civil Engineering Department on 28-5-1981 and he was appointed as a Lecturer in Geology under the Civil Engineering Department on 5-2-1985 and thereafter, an advertisement was issued on 29-11-1988 and on 30-11-1988, he submitted application for the post of Readers in the department of Civil Engineering/Applied Mechanics. He has further stated that the present two petitioners namely-Dr. D. J. Killedar and Dr. Vijay Rode also submitted their applications for the posts in question, however, they were not appointed and it was the respondent No. 3 who was selected for the post of Reader on 13-3-1989 and the petitioner Nos.1 and 2, who were also the applicants for the post of readers in the year 1989 did not raise any objection in respect of the appointment/promotion of the respondent No. 3 to the post of Reader in the year 1989 and the respondent No. 3 was holding the same qualifications on that date, which he is holding today. It is true that the respondent No. 3 was appointed under the Remote Sensing Cell and he was reverted back to the post of Lecturer in the year 1985. It has been further stated that a writ petition was preferred, which was dismissed by this Court and an LPA was also preferred and during the pendency of the LPA, the respondent No. 3 was considered and promoted on 14-1-2003 under the Career Advancement Scheme. It has been further argued that the respondent No. 3 was promoted under the specific scheme known as Career Advancement Scheme from the post of Lecturer/Assistant Professor, in case, the petitioners fulfil the eligibility criteria as provided under the Career Advancement Scheme, they would also be promoted to the next higher post of professors. It has also been stated that the respondent No. 3, as he was having eligibility criteria, was promoted to the next higher post on 14-1-2003 and some of the petitioners were also promoted to the post of Professors under the Career Advancement Scheme. It has also been stated that the respondent No. 3, as he was having eligibility criteria, was promoted to the next higher post on 14-1-2003 and some of the petitioners were also promoted to the post of Professors under the Career Advancement Scheme. It has further stated that after the year 2003, the petitioners never came before this Court and they accepted their promotions as well as the promotion of respondent No. 3. It has been further argued before this Court that no writ petition was filed right from 1997 challenging the gradation list in which the respondent No. 3 was placed over and above the petitioners. The respondent No. 3 has prayed for dismissal of the writ petition. 8. Heard the learned counsel for the parties at length and perused the record. 9. In the present case, it is an admitted fact that the respondent No. 3 was initially appointed as Teaching Assistant (Geology) under the department of Civil Engineering on 28-5-1981 and he was again appointed as a Lecturer on 5-2-1985 and again an advertisement was issued inviting applications for the post of Readers in the department of Civil Engineering/Applied Mechanics. The petitioner Nos.1 and 2 and the respondent No. 3 submitted their applications in respect of the aforesaid advertisement. The respondent No. 3 was selected for the aforesaid post and the candidature of the petitioner Nos. 1 and 2 was rejected by the selection committee. The respondent No. 3 was promoted to the post of Reader in the year 1989 and he was permitted to continue on the post of Reader upto 2003. He was reverted back to the post of Lecturer and he being aggrieved by the reversion, he preferred a writ petition i.e. W. P. No. 468/1996. 10. This Court has carefully gone through the order dismissing the writ petition and the order itself reflects that the respondent No. 3 was a member of the Civil Engineering Department and no documents have been filed by the petitioner Nos. 1 and 2, nor any document is on record, which establishes that Civil Engineering and Geology are two separate departments, in fact there is one department of Civil Engineering and the petitioners, as well as the respondent No. 3 are the members of the Civil Engineering Department. 11. This Court has carefully gone through gradation list issued in the year 1999. 11. This Court has carefully gone through gradation list issued in the year 1999. It is an admitted fact that the respondent No. 3 is shown to be senior to the petitioners in the gradation list issued in respect of Lecturers. Not only this, the gradation lists filed by the petitioner Nos.1 and 2 are of the year 2005, 2006, 2007, 2008, 2009 and 2010. They also reflect that every time the respondent No. 3 was shown senior to the present petitioners. Not only this, the respondent No. 3 was promoted on 14-1-2003 as a Professor and the petitioners were well aware of the fact that the respondent No. 3 is being considered under the Career Advancement Scheme for the post of Professor. The petitioners have not filed any writ petition challenging the promotion of the respondent No. 3, which took place in the year 2003 under the Career Advancement Scheme, though a representation was filed by petitioners, but the same suffers from delay and laches. 12. In the present case, it is pertinent to note that one of the petitioners namely- Dr. (Ms.) Uttamasha Gupta was a member of the governing body in the year 2003, meaning thereby, she, being a member of the meeting which approved the appointment of the respondent No. 3, has not objected the appointment of the respondent No. 3, therefore, it cannot be said that the petitioners were not aware of the fact that the respondent No. 3 is being promoted to the post of professor. In the present case, the respondent No. 3 was holding requisite qualification before obtaining promotion on the post of Professor. He holds Ph.D. in Civil Engineering, Bachelor Degree and Master Degree in Geology and the promotion of the respondent No. 3 is under the Recruitment Rules and particularly under the scheme of Career Advancement Scheme framed by the University Grants Commission, as adopted by the State Government. Therefore, once the respondent No. 3 is holding a Ph.D. in Civil Engineering, this Court is of considered opinion that he has rightly been promoted on the post of Professor by the selection committee. 13. The Apex Court in the case of Basavaiah (Dr.) vs. Dr. H. L. Ramesh and others, reported in (2010) 8 SCC 372 , in paragraph Nos. 32 to 39 has held as under:- "32. 13. The Apex Court in the case of Basavaiah (Dr.) vs. Dr. H. L. Ramesh and others, reported in (2010) 8 SCC 372 , in paragraph Nos. 32 to 39 has held as under:- "32. In Chairman J & K State Board of Education vs. Feyaz Ahmed Malik and others, (2000) 3 SCC 59 = AIR 2000 SC 1039 = 2000 AIR SCW 535, the Court while stressing on the importance of the functions of the expert body observed that the expert body consisted of persons coming from different walks of life who were engaged in or interested in the field of education and had wide experience and were entrusted with the duty of maintaining higher standards of education. The decision of such an expert body should be given due weightage by Courts. 33. In Dental Council of India vs. Subharti K.K.B. Charitable Trust and another, (2001) 5 SCC 486 = AIR 2001 SC 2151 = 2001 AIR SCW 1883, the Court reminded the High Courts that the Court's jurisdiction to interfere with the discretion exercised by the expert body is extremely limited. 34. In Medical Council of India vs. Sarang and others, (2001) 8 SCC 427 = AIR 2001 SC 3300 = 2001 AIR SCW 3350, the Court again reiterated the legal principle that the Court should not normally interfere or interpret the rules and should instead leave the matter to the experts in the field. 35. In B. C. Mylarappa alias Dr. Chikkamylarappa vs. Dr. R. Venkatasubbaiah and others, (2008) 14 SCC 306 = AIR 2009 SC (Supp) 228 = 2009 AIR SCW 1720, the Court again reiterated legal principles and observed regarding importance of the recommendations made by the expert committees. 36. In Rajbir Singh Dalai (Dr.) vs. Chaudhari Devi Lal University, Sirsa and another (2008) 9 SCC 284 = AIR 2009 SC (Supp) 768 = 2008 AIR SCW 5817, the Court reminded that it is not appropriate for the Supreme Court to sit in appeal over the opinion of the experts. 37. In All India Council for Technical Education vs. Surinder Kumar Dhawan and others, (2009) 11 SCC 726 = AIR 2009 SC 2322 = 2009 AIR SCW 3124, again the legal position has been reiterated that it is a rule of prudence that Courts should hesitate to dislodge decisions of academic bodies. 38. 37. In All India Council for Technical Education vs. Surinder Kumar Dhawan and others, (2009) 11 SCC 726 = AIR 2009 SC 2322 = 2009 AIR SCW 3124, again the legal position has been reiterated that it is a rule of prudence that Courts should hesitate to dislodge decisions of academic bodies. 38. We have dealt with the aforesaid judgments to reiterate and reaffirm the legal position that in the academic matters, the Courts have a very limited role particularly when no mala fide has been alleged against the experts constituting the selection committee. It would normally be prudent, wholesome and safe for the Courts to leave the decisions to the academicians and experts. As a matter of principle, the Courts should never make an endeavour to sit in appeal over the decisions of the experts. The Courts must realize and appreciate its constraints and limitations in academic matters. 39. In the impugned judgment, the High Court has ignored the consistent legal position. They were expected to abide by the discipline of the precedents of the Courts. Consequently, we are constrained to set aside the impugned judgment of the Division Bench of the High Court and restore the judgment of the Single Judge of the High Court." 14. Keeping in view the aforesaid judgment and also keeping in view the fact that the promotion of the respondent No. 3 was under a particular scheme and on the basis of experience which the respondent was possessing, the promotion order of the respondent No. 3 does not warrant interference in the matter. Not only this, the promotion order of the year 2003 cannot be set aside at this stage keeping in view the judgment delivered by the Apex Court in the case of Vijay Kumar Kaul and ors. vs. Union of India and ors., reported in AIR 2012 SC 2274 . The Apex Court in paragraph Nos. 21 and 22 has held as under :- "21. From the aforesaid pronouncement of law, it is manifest that a litigant who invokes the jurisdiction of a Court for claiming seniority, it is obligatory on his part to come to the Court at the earliest or at least within a reasonable span of time. The belated approach is impermissible as in the meantime interest of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy. 22. The belated approach is impermissible as in the meantime interest of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy. 22. The acts done during the interregnum are to be kept in mind and should not be lightly brushed aside. It becomes an obligation to take into consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time." 15. In the present case, the petitioners are aggrieved by the gradation list issued right from 1997 and they are also aggrieved by the appointment of the respondent No. 3, who was initially appointed in the year 1981 and was promoted in the year 2003. This Court is of the considered opinion that the petitioners are not entitled for grant of any relief on merits as well as on the ground of delay and laches. Resultantly, the writ petition is, accordingly, dismissed. No order as to costs. Petition dismissed.