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2021 DIGILAW 511 (JK)

Ghulam Rasool v. Union of India

2021-09-29

SANJAY DHAR

body2021
JUDGMENT : Sanjay Dhar, J. 1. Petitioner has filed the instant writ petition seeking the following reliefs: a) Writ, order of direction in the nature of Certiorari seeking quashment of order No.NIT/ PDA/2014/ 9144-45 dated 17.11.2014 passed by the Registrar NIT Srinagar. b) Writ order or direction in the nature of Mandamus commanding upon the respondents to count the services of the petitioner rendered by him as lecturer on adhoc basis in the University of Kashmir w.e.f. 01.04.1991 to 30.04.1993 for the purpose of placement of petitioner on the next higher post in terms of the career advancement scheme and the rules prescribed by All India Technical Education. c) Writ order or direction in the nature of Mandamus commanding upon the respondents to implement career advancement scheme and the rules prescribed by AICTE in favour of the petitioner and accord promotion as Lecturer senior scale in favour of the petitioner w.e.f 01.04.1995, Assistant Professor w.e.f. 01.04.2000, Associate Professor w.e.f. 01.01.2006 and Professor w.e.f. 01.01.2009 in sixth pay commission that become due to the petitioner in terms of the rules or directly Professor w.e.f 2008 in terms of 5th pay commission. d) Writ order or direction in the nature of Mandamus commanding upon the respondents to restrain from passing the orders by sitting over the judgment passed by this Hon’ble Court once the finding has aired been returned on the said issue. e) Writ order or direction in the nature of Mandamus commanding upon the respondent No.5 to explain that under which authority he has passed the order when he has no competence and further Hon’ble Court be gracious enough to proceed against this Registrar so that officers in future will not dare to interpret the judgments passed by this Hon’ble Court in their own wisdom without any competence. f) It is further prayed that by a writ of Mandamus, the respondents be directed to grant following reliefs to the petitioner: i) To count the seniority of the petitioner as Lecturer with effect from 01.04.1991; ii) To place the petitioner in the Senior Scale Grade as Lecturer with effect from 01.01.996; iii) To place petitioner in the grade of Assistant Professor with effect from 01.01.2001; iv) To place the petitioner in the grade of Professor with effect from 01.01.2009; v) To protect the pay of the petitioner with effect from 01.05.1993 and granting of four incentive increments with effect from 01.01.1996 onwards. 2. The case of the petitioner is that he was working as a Lecturer in National Institute of Technology, Srinagar and prior to joining the said institute, he had served as a Lecturer on adhoc basis in the Department of Physics, University of Kashmir. According to the petitioner he was entitled to the reckoning of his adhoc service which he had rendered in University of Kashmir and on that basis his seniority as Lecturer Senior Scale in National Institute of Technology, Srinagar was required to be fixed for paving way to grant of further promotion in his favour. It appears that prior to filing of this petition, petitioner had approached this court by way of a writ petition bearing SWP No.1941/2010 claiming similar relief from the court. The writ petition came to be decided by this court in terms of order dated 11.08.2014. The Writ Court after noticing the facts of the case disposed of the same by making following observations/directions: 6. The case set up by the respondents that the petitioner was not appointed on the recommendation of a duly constituted committee, does not find support from the record available on file. In any case as petitioner was allowed to work as Lecturer on ad hoc basis in University of Kashmir for more than two years it is presumed that he was initially appointed as such by the duly constituted committee unless there is record to belie it, which in present case is neither available on the file nor produced by the respondents. 7. 7. Petitioner therefore has carved out a case for a direction to the respondents to accord consideration to his claim for counting his adhoc service rendered in University of Kashmir of course on the touchstone of the certificates dated 26.08.1975 bearing No.F(Dep-Phy)Adm/T.W and No.F(Apptt-adhoc) adm./TW dated 14.07.2001 and the University Grants Commission guidelines. Once the petitioner is given the benefit sought in the petition, he obviously is to be considered for the next promotion by the Selection Committee under C.A.S having regard to the length of service rendered by him. Respondents while according consideration to the petitioner’s case are expected to be alive of the communication of Minister of Human Resources Development dated 14.03.2012 appended as Annexure P-1 to the petition. 8. Viewed thus petition is disposed of with the direction to the respondents to accord consideration to petitioner’s claim for counting his adhoc service as Lecturer Physics, Kashmir University and thereafter for the promotion that may come his way under rules and take a decision in the matter within eight weeks. 3. It appears that after passing of the aforesaid order, the matter was considered by respondents and an order dated 30.10.2014 came to be passed whereby claim of the petitioner was rejected. The petitioner by way of instant writ petition has challenged the aforesaid order and besides this, he has also reiterated the prayers which he had sought in the earlier writ petition. 4. It is averred in the petition that the petitioner was appointed as a Lecturer in National Institute of Technology, Srinagar (previously Regional Engineering College) in terms of order dated 02.04.1994 on the basis of recommendations of the Selection Committee. Prior to this, the petitioner was working as a Lecturer in the Department of Physics, University of Kashmir on adhoc basis and he had rendered his service over there with effect from 01.04.1991 to 30.04.1993. He was also given increments of pay while he served as Lecturer on adhoc basis in the University of Kashmir. The petitioner represented before the respondents requesting them to count his service which he had rendered on adhoc basis in the University of Kashmir but his representations were not considered compelling him to file the aforesaid writ petition bearing SWP No. 1941/2010. After passing of order dated 11.08.2014, representation of the petitioner was rejected by the respondents in terms of impugned order dated 17.11.2014. 5. After passing of order dated 11.08.2014, representation of the petitioner was rejected by the respondents in terms of impugned order dated 17.11.2014. 5. The petitioner had challenged the action of respondents on the grounds that it was not open to the respondents to reject the representation of the petitioner on the ground that he was not appointed as adhoc lecturer through a selection process by a Selection Committee, in the face of the fact that a finding in this regard had already been rendered by the Writ Court. 6. It is further contended that the petitioner is not only entitled to counting of his service rendered by him on adhoc basis with University of Kashmir but on the basis of this service his seniority is also required to be refixed whereafter he would become entitled to upgradation and promotion under the Career Advancement Scheme of 5th & 6th pay commission. 7. The writ petition has been resisted by the respondents by filing a reply thereto. Respondents have taken a stand that selection of petitioner as Lecturer in the Department of Physics, University of Kashmir, on adhoc basis was not made by a properly constituted Selection Committee but it was made on the basis of recommendations of Head of Department. Thus, petitioner is not entitled to the benefit of service which he rendered in the University of Kashmir. On this basis, it is contended that the petitioner cannot claim release of benefits under Career Advancement Scheme of 5th and 6th Pay commissions as claimed by him because he was not eligible in terms of experience at the relevant time. According to the respondents, they have released all the benefits whatever petitioner was entitled to under the aforesaid Career Advancement Schemes. 8. I have heard learned counsel for the parties and perused the material on record. 9. The decision of this case hinges solely on the issue whether petitioner’s service as Lecturer on adhoc basis with the Department of Physics, University of Kashmir, is eligible to be counted for the purpose of reckoning his seniority and experience in National Institute of Technology, Srinagar. According to the petitioner, he was appointed as Lecturer on adhoc basis by a duly constituted Selection Committee of University of Kashmir whereas respondents have seriously disputed this position. 10. According to the petitioner, he was appointed as Lecturer on adhoc basis by a duly constituted Selection Committee of University of Kashmir whereas respondents have seriously disputed this position. 10. In order to determine this controversy, it is necessary to notice the relevant guidelines of University Grants Commission under which the petitioner claims benefit of past service. These guidelines have been issued on 24.12.1998 under No.F.3-1/94(PS). Guideline No.8.0.0 is relevant to the context and the same is reproduced as under: 8.0.0. Counting of Past Service Previous service, without any break as a Lecturer or equivalent, in a university, college, national laboratory, or other scientific organisations, e.g. CSIR, ICAR, DRDO, UGC, ICSSR, ICHR and as a UGC Research Scientist, should be counted for placement of lecturer in Senior Scale/Selection Grade provided that: 8.1.0 The post was in an equivalent grade/scale of pay as the post of a Lecturer. 8.2.0 The qualifications for the post were not lower than the qualifications prescribed by the UGC for the post of Lecturer; 8.3.0 The candidates who apply for direct recruitment should apply through proper channels; 8.4.0 The concerned Lecturers possessed the minimum qualifications prescribed by the UGC for appointment as Lecturers; 8.50. The post was filled in accordance with the prescribed selection procedure as laid down by the University/State Government/ Central Government/ Institution’s regulations; 8.6.0 The appointment was not adhoc or in a leave vacancy of less than one year duration. Adhoc service of more than one year duration can be counted provided :– a) the adhoc service was of more than one year duration; b) the incumbent was selected to the permanent post in continuation to the adhoc service, without any break. 11. From a perusal of the aforesaid guideline, it is clear that past service without any break as a Lecturer or equivalent in a University etc. has to be counted for placement of Lecturer in Senior Scale Selection Grade provided, inter alia, the post was filled up in accordance with the prescribed selection procedure as laid down by the University/State Government/Central Government/Institutions Regulations. It further provides that adhoc services of more than year duration can be counted if the incumbent was appointed on the recommendations of a duly constituted Selection Committee. It further provides that adhoc services of more than year duration can be counted if the incumbent was appointed on the recommendations of a duly constituted Selection Committee. From this it is clear that adhoc appointment for more than one year duration is eligible to be counted if the adhoc appointment is made by a duly constituted Selection Committee of University or Institute, as the case may be. 12. In instant case petitioner was, admittedly, appointed as Lecturer on adhoc basis in the Department of Physics, University of Kashmir and he served there from 01.04.1991 to 30.04.1993, meaning thereby he had served for more than one year. The only dispute is with regard to the method of appointment of petitioner on adhoc basis. While the petitioner claims that he was appointed by a duly constituted Selection Committee, the respondents dispute the same. 13. The respondents, on the basis of communication dated December 3, 2012, of University of Kashmir, claim that the petitioner was appointed on the basis of recommendation of Head of the Department of Physics. The said communication provides that engagement/appointment of Lecturers on adhoc basis are made by a local Selection Committee headed by Dean of the Faculty and approved by Vice Chancellor. However, there is a clarification issued by the University of Kashmir vide its communication bearing No.F(NIT-adhoc)Adm/TW/16 dated May 17, 2016, according to which the engagement of petitioner as Lecturer on adhoc basis had been made by Vice Chancellor on the basis of recommendations of Departmental Committee of the Department of Physics as per the procedure in vogue in the University at the relevant time referred to by the Head of Department and recommended by the then Dean, Faculty of Science. 14. There is another letter of University of Kashmir bearing No.F(Certificate-Adhoc Aptt)DAA/KU/16 dated 25.05.2016, according to which appointment of the petitioner in the University was made through proper Selection Committee constituted for the adhoc appointments in the University at that time. Not only this, it appears that pursuant to the judgment of this Court in SWP No.1941/2010, the matter was considered by a Screening Committee constituted by the Board of Governors of National Institute of Technology, Srinagar. The Committee was constituted in terms of Board of Governors order No.6-BOG/88 dated 11.07.2015. Not only this, it appears that pursuant to the judgment of this Court in SWP No.1941/2010, the matter was considered by a Screening Committee constituted by the Board of Governors of National Institute of Technology, Srinagar. The Committee was constituted in terms of Board of Governors order No.6-BOG/88 dated 11.07.2015. In its report, the Committee opined that adhoc service of two years and one month rendered by the petitioner in the University of Kashmir has to be considered by the Institute. While rendering this opinion, the Committee observed as under: “As per the letter from Assistant Registrar Admn, Kashmir University (TW) addressed to Registrar NIT Srinagar dated: December 03, 2015, Dr. Khan worked as Lecturer on adhoc basis in the Department of Physics of Kashmir University. He was engaged on the recommendations of the Head of the Department and was allowed pay scale, pay protection and annual increments. The letter further says that the University did not engage Lecturers on adhoc basis through UGC prescribed Selection Committee but by a local Selection Committee approved by the Vice-Chancellor, Kashmir University. Whereas the requirement for adhoc appointment was 55% at the PG level, Dr. G.R. Khan was then a Ph.D degree holder. From the perusal of the documents mentioned above, it transpires that the duly constituted Selection Committee does not necessarily mean UGC prescribed Committee but could also mean a local Committee constituted as per rules and regulations of the Institute/University concerned.” 15. The aforesaid report of the Committee was considered by Board of Governors of National Institute of Technology, Srinagar, in its 93rd meeting on 13th of October, 2016. The Board, while deciding to accept the recommendations of the Faculty Grievance Committee, noted the dissent of representative of Ministry of Human Resources Development. 16. From the analysis of the foregoing material, it can safely be concluded that the petitioner was appointed as Lecturer on adhoc basis by a duly constituted Local Selection Committee of Kashmir University, he possessed the requisite qualification at the relevant time and further he served for more than one year on adhoc basis. The fact that even the increments were released in favour of the petitioner during his adhoc service clearly shows that his selection was made by following due procedure. 17. The fact that even the increments were released in favour of the petitioner during his adhoc service clearly shows that his selection was made by following due procedure. 17. Apart from the above, this Court, while deciding petitioner’s earlier writ petition bearing SWP No.1941/2010, had, in its order dated 11.08.2014, clearly observed that it is to be presumed that the petitioner was initially appointed as Lecturer on adhoc basis by a duly constituted Committee as there was no record to belie the same. In the face of such finding of the Court, it was not open to the respondents to sit in appeal over the said finding and come to a different conclusion while making its order dated 17.11.2014, which has been impugned in this writ petition. The respondents could not circumvent or contradict a judicial order by passing an executive order as if they were sitting in appeal over it. The proper course for the respondents, if they were aggrieved of the finding of the Writ Court, was to file an appeal against the said order and not to contradict it by passing an executive order. Such practice on the part of respondents is highly reprehensible and deserves full condemnation from this Court. The impugned order dated 17.11.2014 is, therefore, unsustainable in the eyes of law. 18. Having held that the petitioner had rendered more than one year service on adhoc basis after having been appointed as such by a duly constituted Local Selection Committee of Kashmir University, he is entitled to be given the benefit of service which he has rendered on adhoc basis as Lecturer with the University of Kashmir in terms of guideline No.8.0.0 of University Grants Commission notified vide communication No.F.3-1/94(PS) dated 24th December, 1998. Once the petitioner is given the benefit of more than two years of service rendered by him on adhoc basis in the University of Kashmir, his seniority in the cadre of Lecturers in National Institute of Technology, Srinagar, is to be reckoned by taking his date of appointment as 01.04.1991 instead of 01.05.1993. 19. The next question that arises for consideration is that once petitioner’s past service is counted towards his experience, whether he can be given the benefit of Career Advancement Schemes under 5th and 6th Pay Commission Reports. 19. The next question that arises for consideration is that once petitioner’s past service is counted towards his experience, whether he can be given the benefit of Career Advancement Schemes under 5th and 6th Pay Commission Reports. According to learned counsel for the respondents, the upgradation/promotion which flow from Career Advance Scheme of 5th and 6th Pay Commission reports are based not only on seniority but also on suitability and performance and, as such, even if past service of the petitioner is counted, still he is not entitled to the benefits under the aforesaid Career Advance Schemes, as a matter of right. 20. It is correct that Career Advancement Schemes can be extended only after adjudging the suitability of the eligible candidates but then in the instant case the material on record suggests that the petitioner was interviewed for the post of Assistant Professor on 30.08.2013 and he was also interviewed for the post of Professor on 01.09.2013 against an undertaking that the interview will be subject to the decision of Board of Governors for Career Advancement Scheme under 5th Pay Commission. It also appears that the petitioner’s case for promotion, so far as its effective date is concerned, has been rejected on the ground that he was not eligible for Professorship. This has been taken by the respondents in CM No.5014/2019. 21. It appears that on 30.11.2018, this Court had, on an interim application (IA No.05/2018) filed by the petitioner, directed the respondents to allow the petitioner to offer his candidature subject to further outcome of writ petition. It was further directed that respondents shall accord consideration to the candidature so offered in terms of norms/rules governing the field and also examine his suitability and eligibility. 22. In pursuance of the aforesaid direction, it appears that the respondents have accorded consideration to the candidature of the petitioner for extending the benefits under Career Advancement Scheme under 5th and 6th Pay Commissions but such benefit, from the date as claimed by the petitioner, has not been extended to him on account of his ineligibility. 22. In pursuance of the aforesaid direction, it appears that the respondents have accorded consideration to the candidature of the petitioner for extending the benefits under Career Advancement Scheme under 5th and 6th Pay Commissions but such benefit, from the date as claimed by the petitioner, has not been extended to him on account of his ineligibility. Once his eligibility in terms of experience is counted after giving him the benefit of past service, if he has been otherwise found suitable while his candidature was considered, as indicated by the respondents in CM No.5014/2019, the petitioner would, obviously, be entitled to the benefits under Career Advancement Schemes from the dates from which his immediate junior in the refixed seniority list was extended said benefits. This, of course, has to be done after refixing his seniority by giving benefit of his past service. 23. It has been further contended by learned counsel for the respondents that if seniority of the petitioner is refixed by giving the benefit of past service to him, it would unsettle the seniority of other incumbents of similar posts working in the Institute. The argument has no merit for the reason that the petitioner has already impleaded all such persons as respondents who are going to be affected by refixation of his seniority. Even otherwise, petitioner now retired has from service, as such, he would only be entitled to monetary benefits and even after according upgradation/promotion to him in terms of Career Advancement Schemes, no prejudice will be caused to those who are still in service. 24. For what has been discussed hereinbefore, the writ petition is allowed and it is directed as under: (a) Impugned order bearing No.NIT/PD/2014/9144-45 dated 17.11.2014, shall stand quashed. (b) While refixing seniority of the petitioner in the cadre of Lecturers in National Institute of Technology, Srinagar, he shall be given the benefit of past service which he has rendered on adhoc basis as Lecturer in the Department of Physics, University of Kashmir. (c) The petitioner shall be given the benefit of Career Advance Schemes under 5th and 6th Pay Commissions from the date his immediate junior (after refixing his seniority) has been given the benefit under the aforesaid Schemes, subject to the condition that he was found suitable by the Committee who had considered his candidature in terms of order dated 30.11.2018 passed by this Court in IA No.05/2018. (d) After undertaking the aforesaid exercise, the service and pensionary benefits, including arrears of salary be released in favour of the petitioner. 25. The writ petition shall stand disposed of in the above terms.