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2024 DIGILAW 253 (HP)

Harish Lakhanpal v. State of H. P.

2024-04-09

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. By way of instant petition, petitioner has prayed for the grant of following substantive reliefs: “i) That the services rendered by the petitioner in GGDSD College, Rajpur with effect from 02.04.1991 upto 19.05.2000 may be counted for the purposes of grant of pay scales including senior scale, selection grade etc. as per the UGC pay scales applicable from time to time. (ii) That the respondents may be directed to grant all the arrears of the pay scales so permitted by the Court after his fixation in the appropriate scales upon counting of his old service put in GGDSD College, Rajpur. (iii) That the petitioner may also be held entitled to interest @ 12% per annum on all due and admissible payments.” 2. The petitioner in the first instance was appointed as Lecturer in Zoology on ad hoc basis on 10.07.1988 in GGDSD College, Rajpur, District Kangra, H.P. (for short, “Rajpur College”). 3. The Rajpur College was affiliated to Himachal Pradesh University (for short, “HPU”). Being affiliated college of HPU, the appointments of the teaching staff in Rajpur College was governed by the provisions of the Ordinances of the HPU. The petitioner was offered post of Lecturer Zoology in Rajpur College on regular basis w.e.f. November, 1990 as the petitioner was found duly qualified and his selection was after conduct of due selection process. The HPU approved the appointment of petitioner as Lecturer in Rajpur College on 02.04.1991. 4. The Rajpur College was being managed by GGDSD College Education Society (for short, “Society”). Another College being run by the Society was the GGDSD College, Baijnath (for short, ‘the Baijnath College’). 5. On 01.05.2000, the petitioner was transferred from Rajpur College to Baijnath College against a vacant post. The Rajpur College was receiving 95% grant-in-aid from the Government of Himachal Pradesh, whereas, the Rajpur College was getting only ad hoc grant-in-aid. 6. Respondent No.1, after transfer of petitioner to Baijnath College, declined 95% grant-in-aid towards the salary of petitioner on the ground that since the initial appointment of petitioner was in a non-aided college, he was not entitled to draw salary while working in Baijnath College from the coffers of the State Government. 7. The petitioner approached this Court by way of CWP No. 1381 of 2001. 7. The petitioner approached this Court by way of CWP No. 1381 of 2001. A Division Bench of this Court vide judgment dated 20.06.2002 allowed CWP No. 1381 of 2001 in the following terms: “In view of the aforesaid, the writ petition is allowed and as a consequence of it, Annexure P-12/A is hereby quashed and set-aside and respondents No. 1 and 2 are directed to now deal with the case of release of 95% Grant-in-Aid as per Rules, 1994, referred to in this judgment for the post of Lecturer in Zoology at Goswami Ganesh Dutt Sanatan Dharam College, Baijnath. Respondents are further directed to ensure that the earned un-paid salary, if any, is released to him forthwith and he is further regularly paid the same alongwith other teachers of College at Baijnath.” 8. The Baijnath College was taken over by the State of Himachal Pradesh in the year 2007. The services of petitioner were also taken over alongwith other staff of the College. However, his services in Baijnath College was not counted, forcing the petitioner to yet again approach this Court by filing a Civil Writ Petition. This Court by an interim order, protected the salary paid to the petitioner at the time of taking over. 9. The precise grievance of the petitioner in the instant petition is that while granting petitioner the benefit of Career Advancement Scheme (CAS), the respondents have not counted the services of petitioner rendered in the Rajpur College. His claim is that since, the senior scale and selection grade becomes available to a Lecturer on completion of requisite period of service by denying him the benefit of length of service rendered in the Rajpur College, his legal vested right has been infringed. 10. The respondents No. 1 to 3 by way of a joint reply, have taken an objection to the claim of petitioner on the ground of delay and laches. It has been alleged that the petitioner was transferred from Rajpur College to Baijnath College in the year 2000, he had earlier also approached this Court by filing two writ petitions, being CWP No. 519 of 2000 and CWP No. 1381 of 2001, he was fully aware about his legal right, if any, and as such, the filing of petition after 11 years, was hit by delay and laches. 11. 11. In addition, the claim of the petitioner has also been contested on the ground that the Rajpur College and Baijnath College were independent autonomous institutions. Rajpur College was not an aided college, hence, his plea to count the services rendered by him in Rajpur College for the purpose of senior scale and selection grade was not tenable. The State Government had no privity with Rajpur College, which purely was a private unaided institution. 12. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 13. Sh. Rajnish Maniktala, learned Senior Counsel for the petitioner contended that vide judgment dated 20.06.2002 passed in CWP No. 1381 of 2001, titled Dr. Harish Lakhanpal vs. State of H.P. and others, the services of petitioner rendered in Rajpur college stood validated. He pointed out that in judgment in CWP 1381 of 2001 Hon’ble Division Bench of this Court had taken into consideration following facts: (i) The selection of petitioner was result of due selection process; (ii) Petitioner possessed all essential qualifications; and (iii) Executive Council of HPU by resolution had authorized transfer of lecturer from one affiliated institution to another. 14. On the strength of the findings rendered by a Division Bench of this Court in CWP No. 1381 of 201, it has been contended that the service of the petitioner in Rajpur College cannot be ignored for the purpose of grant of benefits under CAS as the services of petitioner with Baijnath College were continuation of his services with Rajpur College and there was no break in service as such. 15. In my considered view, the petitioner cannot succeed on above platform alone for the reason that in CWP No. 1381 of 2001, the relief was granted to the petitioner on the basis of resolution of the Executive Council of HPU authorizing the transfer of an incumbent from one affiliated institution to another. However, in the instant case, petitioner is seeking recognition and addition of the service rendered by him in Rajpur College to the length of his service. Thus, the question arises whether the services of petitioner in an unaided institution can be counted as his regular service for the purposes of benefits under CAS. 16. However, in the instant case, petitioner is seeking recognition and addition of the service rendered by him in Rajpur College to the length of his service. Thus, the question arises whether the services of petitioner in an unaided institution can be counted as his regular service for the purposes of benefits under CAS. 16. Petitioner had placed reliance on judgment dated 12.5.2009 passed by this Court in CWP(T) No.3125 of 2008, titled Satya Pal Sood vs. The Commissioner-cum-Secretary (Education) to the Govt. of H.P., where the incumbent having initially served an affiliated educational institution and employed subsequently in the State services, was granted benefit of addition of the service with affiliated institution for the purposes of CAS. The relief in CWP(T) No. 3125 of 2008 was based on a letter dated 27.11.1990 issued by the UGC. The judgment in CWP(T) 3125 of 2008 was assailed in LPA No. 2 of 2010. The said LPA came to be decided after filing of this petition and the view taken by learned Single Judge in CWP(T) No.3125 of 2008 was set-aside on the premise that the letter dated 27.11.1990 issued by the UGC was not ipso facto applicable to the State Government unless specifically adopted. 17. Learned Senior Counsel for the petitioner further submitted that the judgment in LPA No. 2 of 2010, will not be an impediment in grant of prayer of the petitioner as the same was rendered solely on the basis of inapplicability of communication dated 27.11.1990 of the UGC. He further referred to Clause 10 of UGC regulations on minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and measures for the maintenance of standards in higher education 2010 (for short, ‘2010 Regulations’) which reads as under: “10.0. COUNTING OF PAST SERVICES FOR DIRECT RECRUITMENT AND PROMOTION UNDER CAS. He further referred to Clause 10 of UGC regulations on minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and measures for the maintenance of standards in higher education 2010 (for short, ‘2010 Regulations’) which reads as under: “10.0. COUNTING OF PAST SERVICES FOR DIRECT RECRUITMENT AND PROMOTION UNDER CAS. 10.1 Pervious regular service, whether national or international, as Assistant Professor, Associate Professor or Professor or equivalent in a University, Collage, National Laboratories or other scientific/professional Organizations such as the CSIR, ICAR, DRDO, UGC, ICSSR, ICHR, ICMR, DBT, etc., should be counted for direct recruitment and promotion under CAS of a teacher as Assistant Professor, Associate Professor, Professor or any other nomenclature these posts are described as per Appendix III, Table No. II provided that: (a) The essential qualifications of the post held were not lower than the qualifications prescribed by the UGC for Assistant Professor, Associate Professor and Professor as the case may be. (b) The post is/was in an equivalent grade or of the pre-revised scale of pay as the post of Assistant Professor (Lecturer) Associate Professor (Reader) and Professor. (c) The candidate for direct recruitment has applied through proper channel only. (d) The concerned Assistant Professor, Associate Professor and Professor should possess the same minimum qualifications as prescribed by the UGC for appointment to the post of Assistant Professor, Associate Professor and Professor, as the case may be. (e) The post was filled in accordance with the prescribed selection procedure as laid down in the Regulations of University/State Government/Central Government/ Concerned Institutions, for such appointments. (f) The previous appointment was not as guest lecturer for any duration, or an adhoc or in a leave vacancy of less than one-year duration. Ad hoc or temporary service of more than one year duration can be counted provided that: (i) the period of service was of more than one year duration; (ii) the incumbent was appointed on the recommendation of duly constituted Selection Committee; and (iii) the incumbent was selected to the permanent post in continuation to the ad hoc or temporary service, without any break. (g) No distinction should be made with reference to the nature of management of the institution where previous service was rendered (private/local body/Government), was considered for counting past services under this clause.” 18. It has been submitted that the regulation being statutory cannot be ignored by the State Government. (g) No distinction should be made with reference to the nature of management of the institution where previous service was rendered (private/local body/Government), was considered for counting past services under this clause.” 18. It has been submitted that the regulation being statutory cannot be ignored by the State Government. 19. Clause 10 of the regulation, as noticed above, provides for counting of previous regular service for the purposes of direct recruitment and promotion under CAS. Importantly, sub-clause (g) of clause 10 of 2010 Regulations keeps no distinction as to the management of the institution where previous services were rendered. It clearly provides for services rendered in institution managed even by private management. 20. In the facts of the case in hand the Rajpur College was managed by private management. It has been established that petitioner was duly qualified and his selection as regular lecturer in Zoology in Rajpur College was after holding of due selection process. Thus, petitioner was a regularly employed lecturer in Rajpur College from 2.4.1991 to 19.5.2000 whereafter he was transferred to Baijnath College and hence petitioner is entitled to coverage under clause 10 of 2010 Regulations. 21. The question of applicability of 2010 regulation to the State Government of Himachal Pradesh without their specific adoption is no more in the realm of doubt. In Gambhirdan K. Gadhvi Vs State of Gujarat (2022) 5 SCC 179 , Hon’ble Supreme Court has held as under: 20.1. While examining the aforesaid issues the relevant provisions of the UGC Regulations, 2010 enacted in exercise of powers conferred under clauses (e) and (g) of sub-section (1) of Section 26 of the University Grants Commission Act, 1956 and the relevant provisions of the SPU Act, 1955, are required to be referred to. 20.2. The UGC Act, 1956 was enacted to make provision for the coordination and determination of standards in universities and for that purpose, to establish a University Grants Commission. Section 12 deals with “Functions of the Commission”, while Section 14 speaks of “Consequences of failure of universities to comply with recommendations of the Commission”. Section 26 deals with “Power to make regulations”. As per Section 28 the rules and regulations framed under the UGC Act are required to be laid before each House of Parliament and when both the Houses agree then rules and regulations can be given effect with such modification as may be made by Parliament. Section 26 deals with “Power to make regulations”. As per Section 28 the rules and regulations framed under the UGC Act are required to be laid before each House of Parliament and when both the Houses agree then rules and regulations can be given effect with such modification as may be made by Parliament. Therefore, any regulation enacted in exercise of powers under Section 26 can be said to be subordinate legislation. 20.3. For the appointment and career advancement of teachers in the universities and institutions affiliated to it, UGC by Regulation dated 4-4-2000, enacted the University Grants Commission (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to it) Regulations, 2000. However, in the said Regulation of 2000, no qualifications were prescribed for the post of “Pro-Chancellor” or “Vice-Chancellor”. 21. Thereafter, the Government of India, Ministry of Human Resource Development Department of Higher Education, New Delhi by Letter No. 1-32/2006-U.II/U.I(i) dated 31-12-2008 communicated to the Secretary, University Grants Commission, New Delhi the Scheme of revision of pay of teachers and equivalent cadres in universities and colleges following the revision of pay scales of the Central Government employees on the recommendations of the 6th Central Pay Commission. 22. By the said letter, the Government of India directed that there shall be only three designations in respect of teachers in the universities and colleges, namely, Assistant Professors, Associate Professors and Professors. In the said letter revised pay scales, service conditions and Career Advancement Scheme for teachers and equivalent positions including the post of Assistant Professors/Associate Professors/ Professors in universities and colleges were intimated. Pay scales of Pro Vice-Chancellor/Vice-Chancellor were also mentioned therein. It was intimated that the said Scheme may be extended to the universities, colleges and other higher educational institutions coming under the purview of the State Legislature, provided the State Governments wish to adopt and implement the Scheme subject to the terms and conditions mentioned therein. 23. In view of the aforesaid Letter No. 1-32/2006-U.II/U.I(i), dated 31-12-2008 issued by the Government of India and in exercise of the powers conferred under clauses (e) and (g) of sub-section (1) of Section 26 of the UGC Act, 1956, UGC enacted the Regulations, 2010 in supersession of the UGC Regulations, 2000. It was published in the Gazette of India on 28-6-2010 and came into force with immediate effect. 50. It was published in the Gazette of India on 28-6-2010 and came into force with immediate effect. 50. It cannot be disputed that the UGC Regulations are enacted by the UGC in exercise of powers under Sections 26(1)(e) and 26(1)(g) of the UGC Act, 1956. Even as per the UGC Act every rule and regulation made under the said Act, shall be laid before each House of Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act. In case of any between the State legislation and the Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject “education” is in the Concurrent List (List III) of the Seventh Schedule to the Constitution. Therefore, any appointment as a Vice-Chancellor contrary to the provisions of the UGC Regulations can be said to be in violation of the statutory provisions, warranting a writ of quo warranto. 22. Similarly, in State of West Bengal Vs Anindya Sunder Dass, 2022 SCC Online SC 1382, the same principle has been reiterated as under: 61. In Gambhirdan K Gadhvi v. State of Gujarat, the Sardar Patel University Act 1955, expressly vested the power of appointment of the Vice Chancellor in the State government (instead of the Chancellor). Despite the appointment being in terms of the statutory provisions of the Sardar Patel University Act 1955, the Court issued a writ of quo warranto setting aside the appointment of the Vice Chancellor by relying upon the UGC Regulations 2018. This Court, holding that the UGC Regulations were binding, held that: 49. Therefore, when the appointment of Respondent 4 is found to be contrary to the UGC Regulations, 2018 and the UGC Regulations are having the statutory force, we are of the opinion that this is a fit case to issue a writ of quo warranto and to quash and set aside the appointment of Respondent 4 as the Vice-Chancellor of the SP University. 50. It cannot be disputed that the UGC Regulations are enacted by the UGC in exercise of powers under Sections 26(1)(e) and 26(1)(g) of the UGC Act, 1956. Even as per the UGC Act every rule and regulation made under the said Act, shall be laid before each House of Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act. Even as per the UGC Act every rule and regulation made under the said Act, shall be laid before each House of Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act. In case of any conflict between the State legislation and the Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject “education” is in the Concurrent List (List III) of the Seventh Schedule to the Constitution. Therefore, any appointment as a Vice-Chancellor contrary to the provisions of the UGC Regulations can be said to be in violation of the statutory provisions, warranting a writ of quo warranto. (emphasis supplied) 62. In view of the decision in Gambhirdan K Gadhvi, even if the provisions of the Act allowed the appointment of the Vice Chancellor by the State government, it would be in violation of the UGC Regulations. The Regulations become part of the statute framed by Parliament and will prevail. 23. In Professor (Dr.) Sreejith P.S Vs Dr. Rajshree M.S reported in 2022 SCC Online SC 1472, the Hon’ble Supreme Court has held as under: 18. The short question, which is posed for consideration of this Court is: whether while making the appointment of respondent No. 1 as Vice Chancellor of the APJ Abdul Kalam Technological University, Thiruvananthapuram, the appointment should be as per the prevailing UGC Regulations or in effect of the provisions of the University Act, 2015 (State Act)? 23. The decision of this Court in the case of Gambhirdan K. Gadhvi (supra) has been subsequently followed by this Court in the recent decision of this Court in the case of Anindya Sundar Das (supra) while considering the appointment of the Vice Chancellor of Calcutta University. In the said decision, it is also observed and held in paragraph 56 that in view of the decision in the case of Gambhirdan K Gadhvi (supra), even if the provisions of the State Act allowed the appointment of the Vice Chancellor by the State government, it would have to be as per the UGC Regulations and any appointment of Vice Chancellor in violation of the UGC Regulations shall be void ab initio. It is further observed that the UGC Regulations shall become part of the statute framed by Parliament and, therefore, shall prevail. 24. It is further observed that the UGC Regulations shall become part of the statute framed by Parliament and, therefore, shall prevail. 24. In view of the above two binding decisions of this Court, any appointment as a Vice Chancellor made on the recommendation of the Search Committee, which is constituted contrary to the provisions of the UGC Regulations shall be void ab initio. If there is any conflict between the State legislation and the Union legislation, the Union law shall prevail even as per Article 254 of the Constitution of India to the extent the provision of the State legislation is repugnant. Therefore, the submission on behalf of the State that unless the UGC Regulations are specifically adopted by the State, the UGC Regulations shall not be applicable and the State legislation shall prevail unless UGC Regulations are specifically adopted by the State cannot be accepted. 24. Thus, the regular service rendered by petitioner from 2.4.1991 to 19.5.2000 in Rajpur College is liable to be counted for the purposes of grant of benefits under CAS. 25. The objection of respondents 1 and 2 as to delay and laches on part of petitioner in approaching this Court also deserves rejection for the simple reason that the cause of action arose to the petitioner in November 2011 for the first time when the senior scale was granted to the petitioner by ignoring his service rendered in GGDSD College Rajpur. 26. In view of above discussion, the petition is allowed. Respondents 1 and 2 are directed to count the regular service of petitioner rendered in GGDSD College Rajpur from 2.4.1991 to 19.5.2000 for the purposes of grant of benefits under applicable Career Advancement Scheme (CAS) and to further allow him all consequential benefits within a period of eight weeks from the date of passing of this judgment. 27. The petition is accordingly disposed of so also pending application(s), if any.