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Gauhati High Court · body

2019 DIGILAW 840 (GAU)

Zosiamliana Colney v. State of Mizoram

2019-07-19

NELSON SAILO

body2019
JUDGMENT : Heard, Mr. A.R. Malhotra, the learned counsel for the petitioners. Also heard Ms. Mary L. Khiangte, the learned Government Advocate for the State respondent Nos. 1 to 4. None appears for the respondent No. 5 despite service of notice. 2. As many as 31 petitioners have joined hands in filing the present writ petition. The main grievance as projected by them is that they have not been promoted from Assistant Professor (Stage-1) to Assistant Professor (Stage-2) w.e.f. the date they completed 6 years of service from their initial entry as Assistant Professor (Stage-1). The petitioners contend that as many as 102 Assistant Professors, who are senior to them have been given the said benefit of upward movement irrespective of the date of their completion of the training and therefore, they being similarly placed, they should also be given the same benefit. 3. The petitioners were engaged as Lecturers on contract basis pursuant to the recommendation of the constituted selection committee between the month of May, 2007 to December, 2008. Thereafter, vide Notification dated 26.08.2013 (Annexure–6), all the petitioners except the petitioner Nos. 26 & 31 were regularized in service under the Government of Mizoram Regularization of Contract Employees Scheme, 2008 (Regularization Scheme). The petitioner Nos. 26 & 31 were regularized vide Notification dated 28.01.2015 (Annexure–7). Thereafter, the petitioners except petitioner Nos. 17, 26 and 31 upon completion of their probationary period of service successfully, were confirmed as Government Lecturers in Government Colleges vide Notification dated 05.02.2015 (Annexure-8) with immediate effect. Subsequently, the petitioner No. 17 was confirmed vide Notification dated 23.03.2015 (Annexure-9) and the petitioner Nos. 26 & 31 were confirmed vide Notification dated 26.04.2016 (Annexure-10). 4. The petitioners thereafter, submitted a representation to the Director of Higher & Technical Education Department through proper channel, requesting the said authority to allow them to count their previous service rendered on contract basis for the purpose of qualifying service and placement to higher grade. The representation of the petitioners was consequently accepted and thereafter, vide Notification dated 09.10.2015 (Annexure-12), they were allowed to count their past service as qualifying service for the purpose of placement to a higher grade. 5. The representation of the petitioners was consequently accepted and thereafter, vide Notification dated 09.10.2015 (Annexure-12), they were allowed to count their past service as qualifying service for the purpose of placement to a higher grade. 5. The University Grants Commission (UGC) (Minimum Qualification for Appointment to Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (2010 UGC Regulations) came to be adopted in the State vide Notification dated 25.11.2010 which was published in the Mizoram Gazette dated 30.11.2010 (Annexure-20). The effective date for its implementation was fixed as 01.01.2006. Paragraph No. 6.4.4 of the 2010 UGC Regulations provides that an entry level Assistant Professor, who does not have Ph.d or M.Phil or Master’s degree in the relevant professional course shall be eligible for the next higher grade (Stage-2) only after completion of 6 years of service as Assistant Professor. Further, as per Appendix-III Table-III, the minimum academic performance of service requirement for promotion of teachers in Universities and Colleges has been provided. For movement or promotion from Assistant Professor/Equivalent cadres from Stage-1 to Stage-2, the minimum academic performance requirement includes 1 orientation and 1 refresher/research methodology Course of 2/3 weeks duration. 6. Therefore, the next stage of promotion for the petitioners is from Assistant Professor (Stage-1) to Assistant Professor (Stage-2) and which is possible after completion of 6 years of service in the lower stage/entry stage and on completion of the orientation or refresher Course of 2/3 weeks duration. All the petitioners have completed more than 6 years of service in the entry or lower stage in the post of Assistant Professor and they have completed the refresher Course/orientation Course of 2/3 weeks duration between the years 2015 to 2017. As a result, they were promoted and placed in the Assistant Professor (Stage-2) with actual benefit only w.e.f. the date of completion of the orientation or refresher Course of 2/3 weeks duration. It is therefore the case of the petitioners that the benefit of being placed/promoted to the post of Assistant Professor (Stage-2) from the date of completion of 6 years at the entry level should be given to them as was given to the 102 Assistant Professors, who were given the appointment and similarly situated. 7. Mr. It is therefore the case of the petitioners that the benefit of being placed/promoted to the post of Assistant Professor (Stage-2) from the date of completion of 6 years at the entry level should be given to them as was given to the 102 Assistant Professors, who were given the appointment and similarly situated. 7. Mr. A.R. Malhotra, the learned counsel for the petitioners by referring to the reply given by the respondent authorities concerned to the query made by the petitioners through their counsel by way of an RTI application submits that the respondent authorities have allowed the teachers who have completed service of 6 years in the grade and who have undergone prescribed Training Course, promotion retrospective of the date of training process. Such benefit given to 102 Assistant Professors on the basis of the Communication dated 17.12.2012 made by the Under Secretary, UGC. He submits that the said Communication has only extended the date of participating in the orientation/refresher Course for the eligible teachers up to 31st December, 2013 for the purpose of carrying advance scheme. Although there is no specific indication in the said Communication, the respondent authorities have given the benefit of movement to Stage-2 to the Assistant Professors, who are senior to the petitioners. Therefore, similar benefit has to be given to the petitioners as well. 8. Ms. Mary L. Khiangte, the learned Govt. Advocate appearing for the State respondents on the other hand submits that the petitioners participated and completed the orientation/refresher Course after 31.12.2013. Therefore, having regard to Clause 6.3.12 of the 2010 UGC Regulations, the effective date for promotion to Stage-2 will have to be from the date when the petitioners have become eligible for promotion. By referring to the Communication dated 18.08.2015 appended to the affidavit-in-opposition of the respondent Nos. 1 to 4, filed on 21.02.2018, the learned Govt. Advocate submits that the Under Secretary of UGC has clearly clarified the query made by the State Government in the Higher & Technical Education Department that a teacher has to be promoted to the next higher grade under the Career Advancement Scheme (CAS) from the date she/he satisfies/completes/fulfills all the requirements/conditions laid down by the 2010 UGC Regulations under Clause 6.3.12 and not from the date of finalization of the selection procedure by the University. She submits that the petitioners will therefore be only eligible to be considered for promotion to Assistant Professor Stage-2 upon completing the refresher/orientation Course of 2/3 weeks duration. 9. The learned Government Advocate further submits that the Communication of the UGC dated 07.12.2012 (Annexure-IV of the affidavit-in-opposition) to all concerned also speaks for itself. As per the said Communication, the period for completion of the orientation/refresher course was extended up to 31.12.2013 and therefore, those teachers who completed the course within the stipulated period will be given the benefit of promotion to the next higher grade. As for the petitioners, they have completed the course after cutoff date of 31.12.2013 and therefore, they are eligible to be promoted to the next higher grade only from the date they completed the refresher course. Accordingly, the petitioners were given such benefit vide Notifications dated 26.05.2016, 20.06.2016, 14.12.2016 and 27.04.2017. She thus submits that all that the State respondents have only meticulously followed the 2010 UGC Regulations and under the circumstance, the petitioners having no legitimate grievance, the writ petition should be dismissed. 10. I have heard the submissions advanced by the rival parties and I have also perused the materials available on record. 11. As may be noticed, the prayer of the petitioners is to be promoted to Assistant Professor Stage-2 from Assistant Professor Stage-1 on completion of 6 (six) years of service in the lower stage as per Para 6.4.4 of the 2010 UGC Regulations. However, the respondents have granted them promotion only from the date they completed their training course and therefore, they have challenged the Notifications by which they were promoted in so far as the effective date for promotion is concerned. The promotion/up-gradation from Stage-1 to Stage-2 in the post of Assistant Professor includes enhancement of Grade Pay from Rs. 6,000/- to Rs. 7,000/-. However, there is no change in the Pay Band/Pay Scale. 12. The respondent Nos. 1 to 4 have sought to justify their stand by relying upon the Communication dated 07.12.2012 (Annexure-IV) of their affidavit-in-opposition). A perusal of the said Communication would go to show that the date for participation in oriental/refresher course in respect of college teachers amongst others was extended up to 31.12.2013 for the purpose of CAS. 12. The respondent Nos. 1 to 4 have sought to justify their stand by relying upon the Communication dated 07.12.2012 (Annexure-IV) of their affidavit-in-opposition). A perusal of the said Communication would go to show that the date for participation in oriental/refresher course in respect of college teachers amongst others was extended up to 31.12.2013 for the purpose of CAS. The stand of the State respondents therefore is that all those teachers who completed the training course before 31.12.2013 have been promoted to the next higher Grade i.e. Stage-2, irrespective of the date of completion of the training courses. However, it may be noticed that despite 31.12.2013 being the extended time of participation in the refresher courses, the petitioners admittedly have participated and completed the refresher course even after the aforesaid date. The 2010 UGC Regulations was adopted by the State Government w.e.f. 01.01.2006 and the actual monetary benefits paid w.e.f. 01.01.2009. The petitioners as Lecturers/Assistant Professors in different Government Colleges in the State will only be governed by the 2010 UGC Regulations. Clause 6.3.12(a) of the 2010 UGC Regulations provides that if a candidate applies for promotion on completion of the minimum eligible period of his successful service, the date of promotion will be from that of minimum period of eligibility. Appendix-III Table-III of the 2010 UGC Regulations provides for 1 orientation of 1 refresher/research methodology course of 2/3 weeks deputation as the minimum academic performance requires screening/selection criteria for promotion of teachers through CAS i.e., Assistant Professor or equivalent cadres from Stage-1 to Stage-2. No doubt in view of the Communication dated 07.12.2012, as many as 102 Assistant Professors got the benefit of promotion retrospectively on the date of completion of 6 (six) years irrespective of the date of completion of the training courses but the same in view of the relevant UGC guidelines cannot be the basis for granting the petitioners retrospective promotion i.e., prior to their completion of the training courses. The Under Secretary of UGC vide Communications dated 17.06.2015 and 18.08.2015 (Annexure-VI (B) and VI (C) of the State’s affidavit-in-opposition) has also clarified that a teacher has to be promoted to the next higher Grade under the CAS from the date she/he satisfies/completes/fulfills all the requirements/conditions laid down by the 2010 UGC Regulations. The Apex Court in the case of Indian Council of Agricultural Research & Another Vs. The Apex Court in the case of Indian Council of Agricultural Research & Another Vs. T.K. Suryanarayan & Others (1997) 6 SCC 766 held that erroneous promotion cannot create a precedent. 13. The contention of the petitioners that the failure on the part of the respondents to depute them to undergo the training courses at an earlier date cannot be the ground to deny them promotion on their completion of 6 (six) years service also cannot be accepted in view of para 6.3.12 of the 2010 UGC Guidelines. There are also no materials to show that the petitioners had applied for undergoing the training courses. Rather, from the representation submitted by one of the petitioners to the respondent No. 4, exemption from attending the orientation/refresher course was sought for. 14. Under the facts and circumstances and after due consideration, I do not find any merit in the writ petition and the same is accordingly dismissed. No cost.