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Gujarat High Court · body

2016 DIGILAW 1429 (GUJ)

Ila Subhash Joshi v. University Grants Commission

2016-07-21

J.B.PARDIWALA

body2016
JUDGMENT : J.B. Pardiwala, J. 1. By this writ application under Article 226 of the Constitution of India, the petitioner a retired employee of the respondent No. 4 has prayed for the following reliefs: 6. (A) Allow this petition. (B) Quash and set aside the order/communication/decision of the U.G.C. Dated 25.09.2001 at Annexure E, as being unconstitutional, illegal, arbitrary and discriminatory. (C) Declare that the petitioner having been successful in the interview for the purpose of higher grade scale/promotion under Career Advancement Scheme held on 14.07.2000 by duly constituted Committee, is entitled to be placed in the higher grade scale of professor under the Career Advancement Scheme, being a teacher working in the University. (D) Declare that the action of the respondent in not extending the higher grade scale, promotion under the Career Advancement Scheme though the similarly situated employees in other Media Centre having been extended the said benefit, is unconstitutional, arbitrary, illegal and discriminatory. (E) Direct the respondents, their officers, servants and agents to place the petitioner in the higher grade scale under the Career Advancement Scheme pursuant to her selection in an interview held by the duly constituted Committee on 14.07.2000, and further direct the respondents to make fixation at the appropriate stage in the higher grade scale with an appropriate date and revise the pay and pay scale of the petitioner accordingly. (F) Direct the respondents, their officers, servants and agents to pay to the petitioner the difference of arrears of salaries with 18% interest form the date of her entitlement till it is actually paid to the petitioner. 2. The case of the petitioner may be summarized as under: 2.1. The petitioner came to be appointed on 24.03.1987 on the post of Research Officer in the Educational Media Research Center of the Gujarat University, Ahmedabad. The appointment memo dated 24.03.1987 reads as under. Memo- SUB: Appointment Memo With reference to her application dated 24.12.1986 for the post of a Research Officer in the Educational Media Research Centre of Gujarat University, Ahmedabad-9. Smt. I.S. Joshi is appointed to the said post on Probation for a period of one year in the scale of Rs. 1200-50-1300-60-1600-EB-60-1900 plus other allowances and benefit of General Provident Fund. Gratuity and Pension as may be admissible to her under the rules in force from time to time in the University. Smt. I.S. Joshi is appointed to the said post on Probation for a period of one year in the scale of Rs. 1200-50-1300-60-1600-EB-60-1900 plus other allowances and benefit of General Provident Fund. Gratuity and Pension as may be admissible to her under the rules in force from time to time in the University. She is requested to send her acceptance of appointment and inform the University about the date of joining the post. She will not be entitled for examination honorarium. Her superannuation age will be 58 years. It will be her duty as a condiment of her appointment to abide by the rules of the University in force from time to time in respect of conduct and discipline. REGISTRAR TO Joshi Ila Subhash H/12, Sukruti Flats S.M. Road Ahmedabad-380015 3. It is the case of the petitioner that she was appointed on the post in the scale of Rs. 1200-1900 equivalent to the scale which was provided to the Reader. It is her case that she was appointed in the scale of Reader. 4. Her initial appointment was on probation for a period of one year. On 18.04.1989, she came to be confirmed in the pay scale of Rs. 3000-5000 with effect from 24.03.1988. With effect from 01.01.1996, the pay of the teaching staff of the university was revised on account of the implementation of the 5th Pay Commission and the petitioner was placed in the pay scale of Rs. 12000-18000. At that point of time, the pay scale prescribed for the Reader was Rs. 12000-18300/-. 5. On 01.10.1998 the university rectified' the error which was pointed by the petitioner and the petitioner was accordingly placed in the pay scale of Rs. 12000-18300/-. 6. On 14.07.2000, the petitioner was interviewed by a committee consisting of 7 members for the purpose of higher grade scale under the Career Advancement Scheme of the UGC. 7. The UGC vide letter dated 21.02.2000, addressed to the Director, EMRC informed that the post of Director/Research Officer/Media Librarian were academic non-vacation posts. They were classified while approving the staff pattern for the media centers. 8. The UGC thereafter vide letter dated 25.09.2001 which is at Annexure E page 31 rejected the proposal forwarded by the committee for the purpose of promotion under the Career Advancement Scheme. 9. They were classified while approving the staff pattern for the media centers. 8. The UGC thereafter vide letter dated 25.09.2001 which is at Annexure E page 31 rejected the proposal forwarded by the committee for the purpose of promotion under the Career Advancement Scheme. 9. The letter dated 25.09.2001 of the UGC reads as under: UNIVERSITY GRANTS COMMISSION 35, FEROZESHAH ROAD, NEW DELHI-110001 NO. F. 2-5/2001 (MC) 25 September, 2001 Sub: Promotion under Career Advancement Scheme. Sir, "With reference your letter No. E/BOM/533/2001 dated 28th August, 2001 on the subject cited above and to say that the matter regarding promotion of Dr. Ila Joshi working as Research Officer to that of the Professor scale under the Career Advancement Scheme have been examined carefully but since the Career Advancement Scheme shall not apply to the EMRC staff as the scheme of Career Advancement is applicable only to the teachers. Therefore the request of the Centre for placement of Dr. Ila Joshi, Research Officer to the next higher scale is not accepted. " Yours Faithfully (V.R. Dabral) Under Secretary 10. Ms. Venu Nanavati, the learned advocate appearing for the petitioner vehemently submitted that the UGC is not correct in taking the view that the post of Reader is not a teaching post and therefore, the Career Advancement Scheme would not apply to the EMRC staff. Ms. Nanavati submits that the stance of the UGC is not correct when it says that the scheme of Career Advancement is applicable only to the teachers. 11. Ms. Nanavati submits that a memorandum of understanding was arrived at between the University Grants Commission and the Consortium for educational communication as a nodal agency. Such memorandum of understanding was arrived at with the objective of producing audio-visual programmes, conduct of relevant research, training of necessary manpower and promotion of related culture in the university system for the maximum utilization of the electronic media for the education and at the request of the authority of the Gujarat University, the Commission located Audio-Visual Research Center/Educational Media Research/Mass Communication Research Center called the media center at the said university. 12. Ms. Nanavati invited my attention to clause (D) of the memorandum of understanding which is in respect to the staff/recruitment which reads as under: 4. The University/Institution (D) Staff/Recruitment 4.8. 12. Ms. Nanavati invited my attention to clause (D) of the memorandum of understanding which is in respect to the staff/recruitment which reads as under: 4. The University/Institution (D) Staff/Recruitment 4.8. Treat the academic technical and other staff of the Media Centre as equivalent to teaching, technical and other staff of the University/Institution. 12.1. Ms. Nanavati submits that the academic, technical and other staff of media centre was treated as equivalent to the teaching, technical and other staff of the university. Ms. Nanavati further submits that identically situated two persons namely Dr. Sai Prasad and Dr. Akhilesh Singh were granted the benefit of the Career Advancement Scheme. 13. Ms. Nanavati in support of her submission has placed reliance on a decision rendered by the High Court of Madras dated 30.1.2005 in the case of Dr. A. Raja versus Anna University and others In Writ Petition No. 26332 of 2011. 14. In such circumstances referred to above, Ms. Nanavati prays that there being merit in the writ application, the same may be allowed and the relief as prayed for may be granted. 15. On the other hand this writ application is vehemently opposed by Mr. Mitul Shelat, the learned counsel appearing for the university Grants Commission, Mr. Jayraj Chauhan, the learned counsel appearing for the respondent No. 4 i.e. the Educational Media and Research Center and Ms. Dhara Shah, the learned counsel for the Gujarat University. All the learned counsel submitted that on the very first date i.e. the day of appointment itself, it was made clear that petitioner would not be entitled for the examination honorarium. This would suggest that the petitioner was not treated as a member of the teaching staff. If she would have been the member of the teaching staff she would have been entitled to the examination honorarium. 16. The learned counsel further submitted that it was also made clear in the letter of appointment that her superannuation age would be 58 years. If she would have been treated as a member of the teaching staff, than her superannuation age would be of 60 years. 17. 16. The learned counsel further submitted that it was also made clear in the letter of appointment that her superannuation age would be 58 years. If she would have been treated as a member of the teaching staff, than her superannuation age would be of 60 years. 17. It has been further submitted that on that though the committee of the media center recommended the case of the petitioner for the benefit under the Career Advancement Scheme yet the UGC did not sanction such proposal on the premise that the Career Advancement Scheme is not applicable to the EMRC staff as the same is applicable only to the teachers. According to the learned counsel, in view of the opinion of the UGC, the petitioner is not entitled to the benefit of the higher scale. 18. The learned counsel appearing for the respondents further submitted that Dr. Sai Prasad and Dr. Akhilesh Singh at no point of time were granted any such benefits. According to the learned counsel, in the affidavit-in-reply, it has been specifically clarified in this regard. In such circumstances referred to above it is prayed that there being no merit in the present writ application the same be rejected. 19. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the petitioner is entitled to the benefit of the Career Advancement Scheme. 20. It is not in dispute that the appointment of the petitioner was on the post of Research Officer in the center of Gujarat University. It is also not in dispute that at the time of her appointment, it was made clear that she would not be entitled for the examination honorarium. The same is suggestive of the fact that she was not treated as a member of the teaching staff. Her superannuation age was also fixed at 58 years. The superannuation age of the teacher is 60 years. 21. It appears from the materials on record that the post of Research Officer in the pay scale of Reader is considered as one under the academic, non-vacation category. This is one additional circumstance going against the petitioner. If she would have been treated as a member of the teaching staff, then she would have been entitled even to the vacation. 22. This is one additional circumstance going against the petitioner. If she would have been treated as a member of the teaching staff, then she would have been entitled even to the vacation. 22. When an expert body like the University Grants Commission has taken the view that the Career Advancement Scheme is not applicable to the EMRC staff as the same is applicable only to the teachers, and the Research Officer cannot be equated with the teacher than ordinarily the Court should be slow in rejecting such opinion of an expert body unless such decision is patently erroneous or contrary to the law or any rules or regulations. 23. However, so far as the clause [D] 4.8 of memorandum of understanding is concerned on which strong reliance has been placed, there is no clarity in this regard. If read as it is, the same fortifies the submission canvassed by Ms. Nanavati. Relying on such a clause and other provisions, the Madras High Court has taken the view that the post of Producer is a teaching staff. At this stage let me look into the decision of the Madras High Court. Before the Madras High Court, the petitioner Dr. A. Raja challenged the decision of the Anna University declining to treat the post of Producer as a teaching post and thereby permit him to continue in service till the age of 60 years. In the case before the Madras High Court (Supra) Dr. A. Raja was appointed as a Producer in the Audio Visual Research Center of the Anna University. Having noticed that the memorandum of understanding executed between the University Grants Commission and Anna University treated the post of Producer as academic the petitioner therein submitted a representation to the University to consider him as a member of the academic staff. The said representation was disposed of holding that the post of Producer was not a teaching post and as such Dr. A. Raja was not entitled for the benefit of the Career Advancement Scheme. The learned Single of the Madras High Court considered the very same clause like the one, which has been provided so far the memorandum of understanding on record is concerned, while allowing the writ application and holding that the post of Producer should be considered as a teaching post, the Court observed as under: Analysis: 6. The learned Single of the Madras High Court considered the very same clause like the one, which has been provided so far the memorandum of understanding on record is concerned, while allowing the writ application and holding that the post of Producer should be considered as a teaching post, the Court observed as under: Analysis: 6. The petitioner was appointed as Producer by order dated 16 October 1989. The Registrar Anna University issued a proceedings dated 19 May 1990 fixing the pay of the petitioner in the post of Producer. The subject column in the said proceedings shows that it was treated as a Teaching Staff. The Registrar in the said proceedings further stated that the petitioner is appointed to the post of Producer (Lecturer Cadre). The UGC in its circular dated 10 September 1990 issued to the Registrar, Central Institute of English and Foreign Languages, Hyderabad and all other Coordinators has indicated that UGC has decided to treat certain posts including the post of Producer as Academic (non-vocational) posts. The letter dated 20 April 1993 sent by the Director, Curriculum and Educational Media Development Centre to the Registrar, Anna University also shows that the petitioner is working in Teaching Staff Category. 7. The typed set of papers filed by the respondents contain several documents including the Memorandum of Understanding entered into between the UGC and the University of Madras, suggesting that the post of Producer is a Teaching Post. The Memorandum of Understanding provided that the Media Centre would be treated as a separate, academic, non-vocational, autonomous department functioning under its head. There is a further condition in the said agreement that the staff of the Media Centre would be treated as Academic and the post would be equivalent to teaching staff. 8. The following are the terms of the memorandum of understanding relevant for resolving the issue raised in this writ petition. "4. The University/Institution undertakes to: A. 4.1.......... B. Establishment 4.2........... 4.3. Constitute the Media Centre as a separate, academic, non-vacation, autonomous department functioning under its head. C....... D. Staff/Recruitment 4.8. Treat the academic, technical and other staff of the Media Centre as equivalent to teaching, technical and other staff of the University/Institution." 9. The preamble to the Memorandum of Understanding states that UGC has been utilising the Indian Satellite (INSAT) System for broadcasting high quality educational material. C....... D. Staff/Recruitment 4.8. Treat the academic, technical and other staff of the Media Centre as equivalent to teaching, technical and other staff of the University/Institution." 9. The preamble to the Memorandum of Understanding states that UGC has been utilising the Indian Satellite (INSAT) System for broadcasting high quality educational material. The University wanted to provide an institutional framework for sustaining and enhancing these activities. The UGC with the objective of producing audio-visual programmes, conduct of relevant research, training of necessary manpower and promotion of related culture in the University system for the maximum utilization of the electronic media for education has made arrangement with Anna University to establish an Audio visual Research Centre/Educational Media Research Centre. 10. The media centre is therefore a creation of this memorandum of understanding. The programme is fully sponsored by UGC. The University is not expected to spend anything and the entire amount would be met by UGC. Since Anna University is a party to the memorandum of understanding, it is bound by the terms and conditions of the agreement which provides that Staff of the Media Centre would be treated as teaching staff. The Anna University is therefore not correct in its contention that the post of Producer is not considered as teaching post. 11. The learned counsel for the respondents placed reliance on the clarification issued by UGC to the effect that the post of Producer cannot be equated with teachers for CAS as it does not fulfill the parameter set by the Ministry of Human Resource Development. The letter was issued to the Director, Educational Multimedia Research Centre, The English and Foreign Language, Hyderabad. There is nothing on record to show that memorandum of understanding was entered into by UGC with the said University in the line of agreement executed between Anna University and UGC providing for a media centre and treating the employees like Producers as Teaching Staff. It is also true that the Special Leave Petition preferred by an employee challenging the judgment of the Andhra Pradesh High Court was dismissed by the Supreme Court. The order passed by the Supreme Court does not contain the facts of the case. It was simply a dismissal of Special Leave Petition during the time of admission. 12. The very same issue came up for consideration before the Madurai Bench of this Court in W.P.(MD) No. 2166 of 2006. The order passed by the Supreme Court does not contain the facts of the case. It was simply a dismissal of Special Leave Petition during the time of admission. 12. The very same issue came up for consideration before the Madurai Bench of this Court in W.P.(MD) No. 2166 of 2006. Similar agreement entered into between UGC and Madurai Kamaraj University was the subject matter in the said writ petition. The learned Single Judge considered the agreement in the light of the clarifications issued by UGC from time to time and arrived at a conclusion that the post of Co-ordinator in EMRC is an Academic Post. The said judgment would apply even to the case of the petitioner. 13. The Pay Master, viz., UGC considered the post of Producer as a Teaching Post. However, University in its capacity as Pay Disbursing Officer takes a contrary position by flouting the terms and conditions of the memorandum of understanding. 14. The petitioner continued to work as Producer pursuant to the interim order passed by this Court. The respondents have not filed any application to vacate the interim order. The petitioner completed his service and is due to retire on 31 January 2015. 15. The documents available on record very clearly shows that the post of Producer has always been considered as teaching post. Since it is a teaching post, the petitioner is entitled to continue till 60 years. I am therefore of the view that the impugned order is liable to be set aside. Disposition: 16. In the result, the impugned order dated 11 October 2010 is set aside. The petitioner is permitted to work as Producer till he attains the age of 60 years. The first respondent is directed to disburse the arrears of salary and other attendant benefits to the petitioner as expeditiously as possible and in any case within a period of three weeks from the date of receipt or production of a copy of this order. 17. The writ petition is allowed as indicated above. Consequently, the connected MPs are closed. No costs. 24. What is discernable from the decision of the Madras High Court is as under: [a] In the proceeding issued by the Registrar of the Anna University fixing the pay of Dr. A. Raja in the subject scheme of the said proceedings the post of Producer was treated as a teaching staff. Consequently, the connected MPs are closed. No costs. 24. What is discernable from the decision of the Madras High Court is as under: [a] In the proceeding issued by the Registrar of the Anna University fixing the pay of Dr. A. Raja in the subject scheme of the said proceedings the post of Producer was treated as a teaching staff. So far as the case in hand is concerned, the post of Research Officer was not treated as a teaching staff. [b] The University Grants Commission in its circulation dated 10.09.1990 issued to the Registrar, Central Institute of English and Foreign language, Hyderabad and all other coordinators indicated that it had decided to treat certain posts including the post of Producer as academic (non-vacation) post. [c] In the Memorandum of Understanding, before the High Court of Madras, the very same clause like the one in the present case was considered i.e. "Treat the academic, technical and other staff of the Media as equivalent to teaching, technical and other staff of the university institution." [d] As the Anna university was a party to the Memorandum of Understanding, the Court held that it was bound by the terms and conditions of the agreement which provided that the staff of the Media Center would be treated as the teaching staff. [e] Lastly the learned judge noted that the Pay Master namely UGC considered the post of Producer as a teaching post. However, the university in its capacity as the Pay Disbursing Officer takes a contrary position by flouting the terms and conditions of the memorandum of understanding. 25. I am of the view that the issue as regards the Clause (D) 4.8 as contained in the memorandum of understanding is quite hazy. There has not been any satisfactory reply by the respondents in this regard except the fact that right from the inception the post of Research Officer has been treated as academic (non-vacation) post. 26. The respondents at the relevant point of time could have sought some more clarification in this regard from the University Grants Commission, more particularly having regard to the memorandum of understanding. 27. The petitioner retired from service in the year 2007 i.e. after putting in almost 20 years of service. 26. The respondents at the relevant point of time could have sought some more clarification in this regard from the University Grants Commission, more particularly having regard to the memorandum of understanding. 27. The petitioner retired from service in the year 2007 i.e. after putting in almost 20 years of service. I am of the view that the respondent No. 4 shall seek necessary clarification from the University Grants Commission in this regard highlighting the clause [D] 4.8 of the memorandum of understanding and also the decision of the Madras High Court referred to above. 28. This writ petition is disposed of with a direction to the respondent no. 4 to take up this issue once again with the University Grants Commission and after obtaining the opinion of the University Grants Commission in this regard, take a fresh decision. 29. The respondent No. 4 shall draw the attention of the University Grants Commission to the clause [D] 4.8 of the memorandum of understanding as well as the decision of the Madras High Court which has been referred to. 30. This exercise should be undertaken at the earliest. Whatever decision is taken by the University Grant Commission, the same shall be communicated to the petitioner in writing. 31. Ultimately if the petitioner is dissatisfied, it shall be open for her to avail of the appropriate remedy before the appropriate forum in accordance with law. 32. With the above, this writ petition is disposed of.