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2016 DIGILAW 157 (MAN)

Manipur University v. Purna Chandra Thoudam

2016-09-20

R.R.PRASAD, SONGKHUPCHUNG SERTO

body2016
JUDGMENT & ORDER : This appeal, though is directed against the judgment and order dated 6.1.2015 passed in Writ Petition (c) No. 14 of 2010 and also against the order dated 29.9.2015, it, in view of the order passed on 24.2.2016, shall remain confined only to the order passed in the writ application. Before entering into the merit of the case, we need to deal with the matter relating to objection taken on behalf of the respondent over the maintainability of the Appeal being barred by limitation. 2. It be noted that against the order passed on 6.1.2015 by the learned single Judge in a writ petition a Review Application was preferred on 18.3.2015 which was disposed of on 29.9.2015 and thereupon this appeal was preferred on 16.11.2015 against both the orders passed in the writ application as well as in the Review Application. However, subsequently appellant got this appeal confined to the order passed by the learned single Judge in the writ application and thereby it has been reported that appeal is barred by limitation by 267 days. 3. Mr. Sahu, learned counsel submits that the period of 190 days, during which Review Application was pending, needs to be deducted and further if the period which got consumed in obtaining certified copies for both the orders, order passed in writ petition and Revision, there would hardly be any delay and therefore the point of delay cannot be a hurdle in maintaining this appeal. As against this Mr. Rarry, learned counsel submits that appellant, though did file Review Application against the order of the learned single Judge, it was filed with mala fide intention and thereby any period consumed during pendency of the review application is not liable to be deducted. Further, he would submit that appeal preferred should have been accompanied by the Limitation Petition in terms of the provisions of the Gauhati High Court Rules, but the memo of appeal never accompanied by limitation petition, still it was entertained, whereof notice on such defective application was issued but the said appeal would always be taken to be defective. Under the circumstances, delay occurred in filing this appeal never being satisfactory, would be proved as fatal so far maintainability of appeal is concerned. 4. Under the circumstances, delay occurred in filing this appeal never being satisfactory, would be proved as fatal so far maintainability of appeal is concerned. 4. Whatever submissions have been made particularly on the point referred to above are correct but still this never disentitled the appellant from taking a plea of deduction of the period consumed during pendency of the Review Application as nothing was placed before us so as to come to the conclusion that Review application had been filed with any ulterior purpose and thereby it cannot be taken to have been filed maliciously. Further, we do find that when defects relating to appeal being not accompanied by limitation petition was pointed out, liberty was reserved with the respondents to raise the issue of limitation at the time of hearing. Regard being had to the fact relating to the period consumed during revision and also the time taken in supplying the certified copies and also other statements made in the limitation petition, we do find that there has been delay of only few days in filing the appeal, which in the facts and circumstances, we hereby condone. 5. The respondent had been appointed in the, 1974 as Assistant Professor on ad hoc basis in Manipur Language & Literature, in the Centre for PG Studies, JNU, Imphal. The term of the petitioner’s appointment was extended from time to time until it was confirmed under order dated 14.2.1981 w.e.f. 23.2.1974. In course of time, petitioner was promoted as an Associate Professor under the merit promotion scheme vide office order dated 19.6.1984 which reads as follows: “No.MU/19-10/82/FCY. Under Resolution No.3 of the Syndicate dated 11.6.84, Shri P.C. Thoudam, Assistant Professor in the department of Manipur Language & Literature of this University has been promoted as Associate Professor in the scale of Rs.1200-50-1300- 60-1900/- p.m. with effect from the 11th June, 1984 (afternoon) under the Merit Promotion Scheme of the members of the faculty, subject to his producing the notification announcing the award of his Ph.D.” The writ petitioner-respondent subsequently was promoted as Professor in the Department of Linguistic w.e.f 2.2.1989 and retired from service on attaining the age of superannuation on 29.2.2004. 6. Before the writ petitioner-respondent got retired, the University Grants Commission took a policy decision for giving benefit of 2 advance increments at the time of promotion as Reader Associate Professor/Lecturer (Selection Grade) who have acquired/will acquire Ph. 6. Before the writ petitioner-respondent got retired, the University Grants Commission took a policy decision for giving benefit of 2 advance increments at the time of promotion as Reader Associate Professor/Lecturer (Selection Grade) who have acquired/will acquire Ph. D on or before after 1.1.1996 and also to them who were promoted but not given benefit of 2 increments. The policy decision taken by the University Grants Commission was communicated to all concerned vide letter dated 31.8.2001 which reads as follows: “As you are aware, the UGC, with the approval of Ministries of Human Resource Development had extended the benefit of two advance increments at the time of promotion as Reader/Lecturer (Selection Grade) to those teachers who have acquired/will acquire Ph.D. on after 1.1.96. The issue regarding grant of advance increment to teachers who acquired Ph.D. during service (prior to 1.1.96) was under consideration of the Government. It has now been decided that teachers who acquired Ph.D. during service prior to 1.1.96 and who were not given the benefit of any advance increments as per the earlier Career Advancement Scheme may now be given the benefit of two advance increments. These shall however be applicable from 27.7.98.” 7. Subsequently certain clarifications were made under letter dated 24.7.2002 which reads as follows: “The UGC vide its letter even number dated 31.8.2001 had extended the benefit of two advance increments to teachers who acquired Ph.D. during service prior to 1.1.96 and who did not get the benefit of any advance increments as per earlier Career Advancement Scheme. These advance increments were payable with effect from 27.7.98. It is clarified that these two advance increments shall not be admissible to teachers, who were recruited/promoted to a post for which Ph.D. was an essential qualification.” 8. The conjoint effect of the aforesaid two letters is that teachers who acquired Ph.D degree during service period prior to 01.1.1996 and were not given benefit of any advance increment, they would be entitled to have benefit of 2(two) advance increments. However, later on it was clarified that two advance increments shall not be admissible to teachers who were recruited/promoted to a post for which Ph.D. was an essential qualification. 9. However, later on it was clarified that two advance increments shall not be admissible to teachers who were recruited/promoted to a post for which Ph.D. was an essential qualification. 9. It further appears from the case made out by the writ petitioner-respondent that the said decision taken by the UGC in the year 2001, was adopted by the Manipur University in the later part of the year, 2004 whereas the writ petitioner-respondent who went to Mysore in the early part of 2004 for pursuing a fellowship for two years, came back in 2007 and came to know about the said scheme relating to grants of 2 increments and then submitted its representation in the year 2008-2009. When the authority did not take any decision over the said representation, writ petitioner moved to this Court for a direction to the authorities to grant two increments in terms of the policy of the UGC adopted by the Government. 10. Said prayer was objected to by the Manipur University-appellant by taking a plea that for being appointed/promoted on the post of Reader(Associate Professor) one is required to be a Ph.D degree holder which gets reflected not only from the Regulation but also from the order relating to the promotion of the writ petitioner on the post of Associate Professor as the said order does stipulate that order of promotion to the post of Associate Professor would take place only when notification announcing the award of Ph.D is produced. 11. The further stand which has been taken is that though Regulation relating to promotion to the post of Reader stipulates that one should be having good academic records with a doctorate degree, or equivalent published work, the equivalent published work has to be understood as doctoral degree for the reasons that the Regulation does prescribe that one should necessarily be Ph.D degree holder seeking promotion to the post of Reader (Associate Professor). 12. 12. Learned single Judge, after having regard to the submissions advanced on behalf of the parties as well as the Regulation, was pleased to hold that the recruitment rule framed for appointment/promotion for the post of Associate Professor does not require possession of the qualification of only Ph.D to be essential for appointment; rather it also embraces case of those teacher who have not yet obtained Ph.D but has published work of such meritorious nature i.e. equivalent in quality and standard as that of work leading to the doctoral degree. Further, learned single Judge, while holding so, did not find any merit in the submission relating to application being barred by latches and delay. Accordingly, respondents were directed to grant benefits of 2 increments to the petitioner in terms of the decision taken in this regard by the UGC under letter dated 31.8.2001 and 24.7.2002. 13. Being aggrieved with the judgment and order passed on 6.1.2015, the respondent M.U. field a Review Application on the ground that the document, which was found subsequent to the disposal of the case, does indicate that the writ petitioner-respondent had come to the knowledge of the scheme in the year, 2002 in spite of that he preferred writ petition in the year 2010 and thereby application was certainly suffering from latches and delay. 14. Learned single Judge, after having regard of the facts and circumstances, did not find any substance in the review petition and hence dismissed it on 29.9.2015. Thereupon, the appellant-M.U. filed this writ appeal challenging both the orders passed in the writ application as well as in the review petition. While the matter was taken up at the motion stage, notice was issued to the respondents and the impugned order was stayed. When the respondent did appear, objection was raised on his behalf that appeal had been filed beyond the limitation period and thereby it should not have been entertained. When this objection was raised, this Court vide order dated 24.2.2016, allowed the respondents to raise this objection at the time of hearing of the appeal. On perusal of the said order, we do further find that the appellant put forth that he would confine this appeal to the extent of challenge to the order passed in writ application and not in the Review Application. 15. On perusal of the said order, we do further find that the appellant put forth that he would confine this appeal to the extent of challenge to the order passed in writ application and not in the Review Application. 15. Heard the learned counsel for the appellant and the learned counsel for the respondents and also the State. 16. Mr. BP Sahu, learned Sr. counsel took the same point as has been raised before the writ court that doctoral degree is very much essential for promotion to the post of Associate Professor which would also be evident from the order dated 19.6.1984 under which the writ petitioner-respondent was promoted to the post of Associate Professor whereof that promotion was subject to condition of production of notification announcing the award of his Ph.D. By referring to that, learned counsel submits that there has been absolutely no doubt that for the promotion on the post of Associate Professor Ph.D is essential qualification and if that is so, writ petitioner-respondent will not be entitled to 2 increments in terms of the letter dated 24.7.2002 but the learned single Judge did not consider this aspect in the right perspective and thereby order impugned is fit to be set aside. 17. As against this, Mr. Rarry the learned counsel for the writ petitioner-respondent submits that under the merit promotion scheme as stipulated by the UGC under its Regulation known as University Grants Commission (Qualification required of the person to be appointed to be the teaching staff of the University or other institutions affiliated to it) Regulation 1982 and the ordinance issued by the M.U. in this regard, Ph.D has never been made essential qualification in every type of promotion to the post of Reader (Associate Professor). In other words, persons having good academic records without having doctoral degree can also be promoted to the post of Associate Professor provided he does have published works equivalent to doctoral degree and there has been no ambiguity in the regulation of the UGC as well as in the ordinance issued by the University and hence the learned single Judge was absolutely justified in holding that doctoral degree is never necessary in all cases of promotion to the post of Reader/Associate professor; rather the persons who did publish works equivalent to doctoral degree would also be entitled for promotion to the post of Reader. 18. 18. In the context of the submission advanced, we need to re-appreciate the submission in the context of the relevant Regulation and the ordinance issued by the Manipur University relevant part of which is being reproduced herein below: “READER. “Good academic record with a doctoral degree or equivalent published work. of being actively engaged in research or methods or (i) (ii) innovation in teaching (iii) production of teaching materials.” About five years’ experience of teaching and/or research provided that at least three or those years were as Lecturer or in an equivalent position. This condition may be relaxed in the case of candidates with outstanding record of Teaching/Research. EXPLANATION: For determining “Good Academic Record” the following criteria shall be adopted. UNIVERSITY READER: (i) A candidate holding a Ph.D. degree should possess at least a second class Master’s degree; or (ii) A candidate without a Ph.D. Degree should possess a high second class Master’s degree and second class in the Bachelor’s degree. OR (iii) A candidate not possessing Ph.D. Degree but possessing second class Master’s degree should have obtained first class in the Bachelor’s degree.” The Manipur University also issued an Ordinance called the “Ordinance relating to qualifications and career advancement of teachers of the University, 1988”. According to the said Ordinance, similar provisions have been made as follows: “READER “Good academic record with a doctorate degree or equivalent published work in the relevant field. Evidence of being actively engaged in (i) research or (ii) innovation in teaching methods or (iii) production of teaching materials.” Five years’ experience of teaching and/or research provided that at least three or those years were as Lecturer or in an equivalent position. This condition may be relaxed in the case of candidates with outstanding record of teaching/research.” 19. On reading the said provision, there does not appear to be any ambiguity at all that both the categories of the persons, having doctoral degree and persons not having doctoral degree but does have equivalent published work are entitled to be promoted to the post of Reader/Associate Professor. This gets further clarified from the explanation which goes to show that in what event a candidate holding a Ph.D degree and a candidate without having Ph.D degree are eligible to be promoted to the post of Reader/Associate Professor. This gets further clarified from the explanation which goes to show that in what event a candidate holding a Ph.D degree and a candidate without having Ph.D degree are eligible to be promoted to the post of Reader/Associate Professor. The learned single Judge, after examining the said provision meticulously, was pleased to hold that possession of doctoral degree, is not an essential qualification for appointment/ promotion to the post of Associate Professor; rather the person without having Ph.D degree is also entitled to be promoted to the post of a Reader if he does have published work equivalent to doctoral degree. There does not appear any reason to disagree with the said finding. 20. Coming to the other aspect, we may say that in the facts and circumstances, the learned single Judge has rightly rejected the plea taken on behalf of the appellant-respondent regarding case being barred by delay and latches. 21. Thus, we find that impugned judgment and order never suffers from any illegality and hence it never warrants to be interfered with. Accordingly the appeal, being devoid of any merit, is hereby dismissed. Connected Misc. application stands closed.