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Allahabad High Court · body

2024 DIGILAW 461 (ALL)

Bhaktiputra Rohtam v. Banaras Hindu University

2024-02-13

AJIT KUMAR

body2024
JUDGMENT : 1. Heard Sri Sanjeev Singh, learned Senior Advocate assisted by Sri Priyansh, learned counsel for the petitioner, Sri Rahul Jain, learned counsel appearing for the University Grants Commission and Sri Hem Pratap Singh, learned counsel for the respondent- University. 2. Petitioner has approached this Court for two reliefs: (I) Promotion under the Career Advancement Scheme (hereinafter referred as 'CAS') from the date he became entitled; and (II) for re-employment as a teacher in the department as per Regulation 2.1 of the University Grants Commission Regulations, 2018 (for short, 'U.G.C. Regulations, 2018') notified on 18th July, 2018. 3. Briefly stated facts of the case are that the petitioner while working as Associate Professor in the faculty of Sanskrit Vidya Dharm Vigyan, Banaras Hindu University, Varanasi, became entitled to be considered for promotion as Professor in the University on 04.11.2021 under CAS of University Grants Commission (for short 'U.G.C.') vide Regulation 6.3 of U.G.C. Regulations, 2018. 4. Accordingly, for first relief, petitioner moved an application before the Vice Chancellor for consideration of his candidature for promotion under the CAS on 04.11.2021 itself which got admittedly received in the Selection and Assessment Cell of the B.H.U. University on 05.01.2022. However, nothing further happened in the matter and petitioner's application for promotion under the CAS remained pending. Since the petitioner's claim was not being considered for promotion, he made representation and ultimately retired from the faculty of the University upon attaining age of superannuation on 31.12.2022. 5. After retirement, petitioner applied for re-employment i.e. his second relief, as per the provisions contained under the Regulation 2.1 of U.G.C. Regulations, 2018 but when his application for re-employment was also not given any consideration, he filed a writ petition before this Court being Writ-A No.11409 of 2023 in which a direction was issued to the Vice Chancellor to dispose of matter of his claim that he would raise in his representation. Petitioner, accordingly, made a representation on 11.08.2023 which came to be ultimately rejected by the Vice Chancellor of the University vide his order dated 09.10.2023, now impugned in the present petition. 6. Regarding promotion under the CAS, the argument advanced is that petitioner's claim to be promoted as Professor got matured on 04.11.2021 and, therefore, applying the procedure prescribed for under Regulation 6.3 of the U.G.C. Regulations, 2018, petitioner's claim ought to have been considered. 6. Regarding promotion under the CAS, the argument advanced is that petitioner's claim to be promoted as Professor got matured on 04.11.2021 and, therefore, applying the procedure prescribed for under Regulation 6.3 of the U.G.C. Regulations, 2018, petitioner's claim ought to have been considered. He submits that the University failed to accord due consideration to the claim of the petitioner. It was University's fault for which petitioner cannot be penalised and accordingly, cannot be made to suffer. 7. In support of his second relief for re-employment as Teacher in the University, he heavily relied upon Regulation 2.1 of Regulations, 2018 to contend that be it Assistant Professor or Associate Professor or Professor, a teacher of any of these categories was entitled to be reemployed provided there existed vacancy in the department. He, thus, submits that Vice Chancellor manifestly erred in rejecting the claim of the petitioner on both counts. 8. Sri Hem Pratap Singh, learned Advocate appearing for the University, on the contrary, argues that there being no executive council functioning in the University since November, 2020, claim of the petitioner even after being matured to be considered for promotion as Professor, could not be given consideration as every such appointment and promotion was required to be approved by the executive council in the first instance before consequential effective order was passed by the Vice Chancellor. He submitted that executive council of the University was a statutory body and vested with all such powers, in absence of which, and there being no order by the competent government authorising Vice Chancellor to pass orders or to act on behalf of the executive council, prior to the year 2023, the Vice Chancellor was justified in not issuing any order promoting the petitioner. He further submitted that petitioner having retired, now could not be benefited as no more promotional avenue was available to adjust a retired teacher. He submitted that the teacher to be considered for promotion under CAS of the U.G.C. Regulations had to be a sitting member of the faculty and there was no provision to give any notional promotion to a retired teacher under CAS. He further submitted that under the CAS, there was no sanctioned substantive vacancy as such and the post and designation was co terminus. He further submitted that under the CAS, there was no sanctioned substantive vacancy as such and the post and designation was co terminus. In support of his above argument, Sri H.P. Singh took the Court to relevant provisions of Banaras Hindu University Act, 1915 which vide Section 10 provided powers to be exercised by the executive council. Section 10 is reproduced as under:- 10. Executive Council.—(1) The Executive Council shall, subject to the control of the Visitor, be the executive body of the University and shall have charge of the management and administration of the revenue and property of the University and the conduct of all administrative affairs of the University not otherwise provided for. (2) Subject to the provisions of this Act, the Executive Council shall exercise such other powers and perform such other duties as may be conferred or imposed on it by the Statutes or the Ordinances. 9. On the point of second relief, Sri H.P. Singh argued that Regulation 2.1 carried a proviso also according to which, re-employment of a teacher was required to be strictly in accordance with the guidelines prescribed by the U.G.C. from time to time. He submitted that as per the U.G.C. guidelines, only a professor could be re-employed as a teacher. In this regard, he took the Court to the Model Guidelines of U.G.C. for re-employment of superannuated teachers on 15.02.2008 annexed as Annexure-CA-2 to the counter affidavit in which vide Clause 3 of the guidelines of U.G.C., it was the Professor who is only entitled for reemployment. Clause 3 of the U.G.C. guidelines runs as under: "3. Eligible Category: The category of superannuated teachers eligible for re-employment shall be: a) Professor only, in the case of Universities; and, b) Professors, Readers and Lecturers (Selection Grade) only, in the case of Colleges." 10. Sri Purunendu Kumar, learned Advocate appearing for U.G.C. adopted the arguments of Sri H.P. Singh relating to the two reliefs claimed for by the petitioner. He also relied upon the U.G.C. guidelines of 2015 and the U.G.C. Regulations, 2018. However, upon a pointed query being made, he could not explain as to what was the source of power available under the U.G.C. Act to frame guidelines, inasmuch as, he could no show any provision from where it could be inferred that U.G.C. Guidelines would prevail even after the U.G.C. regulations had been framed and enforced. 11. However, upon a pointed query being made, he could not explain as to what was the source of power available under the U.G.C. Act to frame guidelines, inasmuch as, he could no show any provision from where it could be inferred that U.G.C. Guidelines would prevail even after the U.G.C. regulations had been framed and enforced. 11. Having heard learned counsel for the respective parties, their arguments raised across the bar and having perused the records, the Court finds two points to be arising in the case for consideration on the legal pleas as advanced on behalf of the rival parties: (A) whether the petitioner would be entitled to be promoted notionally also after retirement under the CAS in the event university is found to have faulted with the career of the petitioner by denying his due promotion as Professor for no justifiable reason; and (B) whether as per the U.G.C. Regulation 2.1, petitioner having retired as Associate Professor was also entitled for re-employment and that proviso to the said regulation would be limited to applying the guidelines to the extent provision is silent on general principles that proviso would not take away or dilute the mandate contained under the principal provision. 12. Before dealing with the two points framed above, I would like to indicate here the admitted fact positions between the parties: (i) Petitioner's status as Associate Professor in the department of Dharmagam, Faculty of Sanskrit Vidya Dharm Vigyan is not questionable and also that his entitlement to become Professor got matured on 04.11.2021 under CAS; (ii) Petitioner also moved necessary application for consideration of his candidature for his promotion as Professor in the department on 04.11.2021 which was received on 05.01.2022 in the concerned cell of the University dealing with promotions under CAS and the concerned designated cell did not process the papers only on the ground that there was no Executive Council; and (iii) The Executive Council is not functioning in the university since November, 2020 and it is now very recently that the Central Government has issued circular directing the Vice Chancellor to take up the task of executive council by exercising power under Section 7-C(5) of the B.H.U. Act, 1915. 13. 13. Coming to point (A) i.e. on the question of promotion of the petitioner and his entitlement and that too after his attaining age of superannuation, it is required to be looked into as to what were the rules of promotion under CAS and what procedures were prescribed there and whether it was by way of seniority with certain statutory period of service that promotion was to be offered in routine way under the CAS or it was by way of selection. In the event of former, petitioner may have a claim to be given notional promotion and consequential benefits but in the event of promotion by selection, it may not be feasible now to consider the candidature of a candidate like petitioner after his attaining age of superannuation more especially in the circumstances, when petitioner did not file any petition seeking such promotion prior to his superannuation. 14. In order to find answer, I proceed to examine the relevant provisions of the U.G.C. Regulations in the first instance. There is no dispute or quarrel about the U.G.C. Regulations 2018 that provide for promotion under CAS. The Regulations do provide for assessment of a teacher to be promoted on the basis of his self appraisal report and over all performance for which a teacher is to provide documents in support of his claim. Regulations 6.1. and 6.2 and it sub-regulations are there in this regard and are, accordingly, reproduced hereinunder: " 6.1 Assessment Criteria and Methodology: a) Tables 1 to 3 of Appendix II are applicable to the selection of Assistant Professors/ Associate Professors/ Professors/ Senior Professor in Universities and Colleges; (b) Table 4 of Appendix II is applicable to Assistant Librarians/ College Librarians and Deputy Librarians for promotion under Career Advancement Scheme; and (c) Table 5 of Appendix II is applicable to Assistant Directors/ College Director of Physical Education sports and Deputy Directors/ Directors of Physical Education and Sports for promotions under Career Advancement Scheme. 6.2 The constitution of the Selection Committee and Selection procedure as well as the Assessment Criteria and Methodology for the above cadres, either through direct recruitment or through Career Advancement Scheme, shall be in accordance with these Regulations." 15. UGC Regulations, 2018 vide Regulation 5 provide for constitution of selection committee and guidelines for selection procedure. 6.2 The constitution of the Selection Committee and Selection procedure as well as the Assessment Criteria and Methodology for the above cadres, either through direct recruitment or through Career Advancement Scheme, shall be in accordance with these Regulations." 15. UGC Regulations, 2018 vide Regulation 5 provide for constitution of selection committee and guidelines for selection procedure. Regulation 5.1(X) provides for the Screening-cum-Evaluation Committee for the purposes of promotion under CAS for Assistant Professors, Associate Professors Regulation 5.1(X) is reproduced hereinunder: "X. The "Screening-cum-Evaluation Committee" for CAS promotion of Assistant Professors/ equivalent cadres in Librarians/Physical Education and Sports from one level to the other higher level shall consist of: A. For University teachers: i) The Vice-Chancellor or his/her nominee shall be the Chairperson of the Committee; ii) The Dean of the Faculty concerned; iii) The Head of the Department/ Chairperson of the School; and iv) One subject expert in the subject concerned nominated by the Vice-Chancellor from the University panel of experts." 16. Clause (I) of Regulation 6.3 provides a candidate to apply in advance from the due date and the university is required to initiate process of his screening/selection and complete the process within six months. Vide clause (III), the CAS promotion from lower stage to higher stage is to be done by Screening-cum-Evaluation Committee as provided under Table 1 of Appendix-II. The Regulations also provide that CAS promotion criterion from Associate Professor to Professor would be 'satisfactory' or 'good' in Annual Performance Assessment report of at least last three years assessment period as per Table 1 Appendix-II and at least 110 research score, as per Appendix-II Table 2. The promotion of-course is to be recommended by the selection committee that is to be constituted for this purpose under the U.G.C. Regulations. Regulation 6.3 is reproduced hereinunder: "6.3 The criteria for promotions under Career Advancement Scheme laid down under these Regulations shall be effective from the date of notification of these Regulations. However, to avoid hardship to those faculty members who have already qualified or are likely to qualify shortly under the existing regulations, a choice may be given to them, for being considered for promotions under the existing Regulations. This option can be exercised only within three years from the date of notification of these Regulations. However, to avoid hardship to those faculty members who have already qualified or are likely to qualify shortly under the existing regulations, a choice may be given to them, for being considered for promotions under the existing Regulations. This option can be exercised only within three years from the date of notification of these Regulations. I. A teacher who wishes to be considered for promotion under the CAS may submit in writing to the university/college, within three months in advance of the due date, that he/she fulfils all the requirements under the CAS and submit to the university/college the Assessment Criteria and Methodology Proforma as evolved by the university concerned supported by all credentials as per the Assessment Criteria and Methodology guidelines set out in these Regulations. In order to avoid any delay in holding the Selection Committee meetings for various positions under the CAS, the University/College may initiate the process of screening/selection, and complete the process within six months from the receipt of application. Further, in order to avoid any hardship, the candidates who fulfil all other criteria mentioned in these Regulations, as on and till the date on which these regulations are notified, can be considered for promotion from the date, on or after the date, on which they fulfil these eligibility conditions. II. The Selection Committee specifications as contained in Clauses 5.1 to 5.4 shall be applicable to all direct recruitments of faculty positions and equivalent cadres and Career Advancement promotions from Assistant Professor to Associate Professor, from Associate Professor to Professor, Professor to Senior Professor (in University) and for equivalent cadres. III. The CAS promotion from a lower stage to a higher stage of Assistant Professor shall be conducted through a "Screening-cum-Evaluation Committee", following the criteria laid down in Table1 of Appendix II. IV. The promotion under the CAS being a personal promotion to a teacher holding a substantive sanctioned post, on his/her superannuation, the said post shall revert back to its original cadre. V. For the promotion under the CAS, the applicant teacher must be on the role and in active service of the University/College on the date of consideration by the Selection Committee. VI. The candidate shall offer himself/herself for assessment for promotion, if he/she fulfils the minimum grading specified in the relevant Assessment Criteria and Methodology Tables, by submitting an application and the required Assessment Criteria and Methodology Proforma. VI. The candidate shall offer himself/herself for assessment for promotion, if he/she fulfils the minimum grading specified in the relevant Assessment Criteria and Methodology Tables, by submitting an application and the required Assessment Criteria and Methodology Proforma. He/she can do so three months before the due date. The university shall send a general circular twice a year, inviting applications for the CAS promotions from the eligible candidates. i) If a candidate applies for promotion on completion of the minimum eligibility period and is successful, the date of promotion shall be from that of minimum period of eligibility. ii) If, however, the candidate finds that he/she would fulfils the CAS promotion criteria, as defined in Tables 1, 2, 4, and 5 of Appendix II at a later date and applies on that date and is successful, his/her promotion shall be effected from that date of the candidate fulfilling the eligibility criteria. iii) The candidate who does not succeed in the first assessment, he/she shall have to be re-assessed only after one year. When such a candidate succeeds in the eventual assessment, his/her promotion shall be deemed to be one year from the date of rejection. VII Regarding the cases pending for promotions from one Academic Level/Grade Pay to another Academic Level/Grade Pay under the Career Advancement Scheme provided under the 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 and its subsequent amendments, the teachers shall be given the option to be considered for the promotion from one Academic Level/Grade Pay to another Academic Level/Grade Pay as per the following: (a) The teachers shall be considered for promotion from one Academic Level/Grade Pay to another as per the CAS under these Regulations. OR (b) The faculty members shall be considered for the promotion from one Academic Level/Grade Pay to another as per the CAS provided under the 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 and its amendments with relaxation in the requirements of Academic Performance Indicators (API) based Performance Based Appraisal System (PBAS) upto the date of notification of these Regulations. The relaxation in the requirements of Academic Performance Indicators (API) based Performance Based Appraisal System (PBAS) upto the date of notification of these Regulations for the promotion from one Academic Level/Grade Pay to another under CAS as provided in 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 and its amendments, is defined as under : i. Exemption from scoring under Category I, as defined in Appendix III of said above mentioned 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 and its amendments including University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) (4th Amendment), Regulations, 2016, for faculty and other equivalent cadre positions. ii. Scoring in Category II and Category III for faculty and other equivalent cadre positions shall be as provided for in the 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 with the following combined minimum API score requirement for Category II and Category III taken together, as mentioned below." 17. Thus, a candidate in the first instance as per Clause (VI) of Regulation 6.3 would make an application along with her/his self assessment for promotion by submitting application upon a required assessment criteria and methodology proforma three months before due date and it is thereafter that the papers are completed and placed before the selection committee. The claim of the petitioner is that he moved an application on 04.11.2021 when his case matured and that application was received in the Selection and Assessment Cell of the University on 05.01.2022 but the University failed to constitute any selection committee as contemplated under the U.G.C. Regulations possibly for there being no executive council in the university. The claim of the petitioner is that he moved an application on 04.11.2021 when his case matured and that application was received in the Selection and Assessment Cell of the University on 05.01.2022 but the University failed to constitute any selection committee as contemplated under the U.G.C. Regulations possibly for there being no executive council in the university. The U.G.C. Regulations do provide or contemplate a situation in the event an application is moved on the date the promotion is due, the same could not be considered as required then there has to be a process and procedure to be followed and the eligibility criterion as given in Clause C(IV) of U.G.C. Regulation 6.4 is reproduced hereinunder: "C. Career Advancement Scheme (CAS) for University teachers IV. Associate Professor (Academic Level 13A) to Professor (Academic Level 14) 1) An Associate Professor who has completed three years of service in Academic Level 13A. 2) A Ph.D Degree in the subject concerned/allied/relevant discipline. 3) A minimum of ten research publications in the peer-reviewed or UGC-listed journals out of which three research papers should have been published during the assessment period. 4) Evidence of having guided at least one doctoral candidate. 5) A minimum of 110 Research Score as per Appendix II, Table 2. CAS Promotion Criteria: A teacher shall be promoted if; i) He/she gets a 'satisfactory' or 'good' grade in the annual performance assessment reports of at least two of the last three years of the assessment period, as per Appendix II, Table 1, and at least 110 research score, as per Appendix II, Table 2. ii) The promotion is recommended by a selection committee constituted in accordance with these Regulations." 18. Except for the eligibility clause which every candidate seeking promotion under CAS is required to meet the only other parameter is 'satisfactory' or 'good' grade in annual performance assessment reports of at least 3 to 5 years as per table provided under the Appendix-II. It is, thus, the Screening-cum-Evaluation Committee which forwards the report for the purposes of according promotion. 19. It is, thus, the Screening-cum-Evaluation Committee which forwards the report for the purposes of according promotion. 19. In the total circumspect of Rules that are there provided for under CAS, it is clear that this rule of promotion is more by seniority than by selection and, therefore, if the executive council was not there and the Vice Chancellor was of the view that papers of the petitioner had reached to the assigned cell designated for the purposes of processing of evaluation, it was required for the designated cell to have processed the paper. Petitioner was very much active member of the service if Screening-cum-Evaluation Committee had met at the relevant point of time as per clause (I) of Regulation 6.3. 20. Having not done so upon lame excuses that there was no executive council functional in the university, in my considered view, the University was not justified in denying promotion to the petitioner that was due to him. The power could have been exercised by the Vice Chancellor under Section 7-C (5) meeting the requirement as an urgency. It is a statement made on behalf of the respondent-University that till date there was no executive council and now the Central Government has issued an order that Vice Chancellor will act in its behalf. 21. Provisions as contained under Section 7-C(5) of Banaras Hindu University Act, 1915, is reproduced hereinunder: "7C(5). If, in the opinion of the Vice-Chancellor, any emergency has arisen which requires immediate action to be taken, the Vice-Chancellor shall take such action as he deems necessary and shall report the same for approval at the next meeting to the authority which, in the ordinary course, would have dealt with the matter: Provided that, if the action taken by the Vice-Chancellor is not approved by the authority concerned, he may refer the matter to the Visitor, whose decision thereon shall be final. Provided further that, where any such action taken by the Vice-Chancellor affects any person in the service of the University, such person, shall be entitled to prefer, within thirty days from the date on which he receives notice of such action, an appeal to the Executive Council. 22. In my considered view, it was not necessary for the government to have passed an order asking the Vice Chancellor to act on behalf of the executive council in purported exercise of its power under Section 7-C (5). 22. In my considered view, it was not necessary for the government to have passed an order asking the Vice Chancellor to act on behalf of the executive council in purported exercise of its power under Section 7-C (5). The provisions as contained under Section 7-C(5) were very much there and, therefore, the power could have been exercised even earlier by the Vice Chancellor. Petitioner has really, therefore, suffered for no fault on his part except for lack of formalities that were to be accomplished by the University through its screening committee. The Vice Chancellor had a free hand to form a screening committee exercising power under Section 7-C(5) and if he chose not to exercise this power, the petitioner cannot be made to suffer. 23. Thus, what here comes out to be a case where petitioner was not at fault and had the selection committee been constituted and considered the assessment and performance of petitioner of last three years, he would have been promoted. Under the order impugned, the ground taken is that selection committee and the interview could not have been held for promotion from Associate Professor to Professor for certain reasons but what reasons were there is not disclosed and only this much has been stated that there has been no constitution of executive council after June, 2021 when the term of the erstwhile executive council came to end. The entire rules also disclose very clearly that there is no selection criterion as such under the CAS If the Assessment criterion is sound as per the methodology tables provided under the Rules and the eligibility criterion is fulfilled as per Clause (iv) of Regulation 6, a candidate, who is eligible, would be promoted under the CAS from the date of eligibility. There is no prescribed procedure for holding selection as such or interview for a candidate to participate regarding his knowledge and expertise etc. In the circumstances, it can be taken to be that under the CAS, maturity of claim is only conditioned by self appraisal and assessment which is done on the parameters prescribed under the table. 24. In the case of Union of India & anr. In the circumstances, it can be taken to be that under the CAS, maturity of claim is only conditioned by self appraisal and assessment which is done on the parameters prescribed under the table. 24. In the case of Union of India & anr. vs Manpreet Singh Poonam & ors; 2022 LiveLaw (SC) 254, it was held that mere existence of vacancy will not create a right in favour of an employee for retrospective promotion and in which the clearance of a candidate is dependent upon the selection process. The Court in that case, therefore, observed that if rules contemplate promotion on a vacancy for which a candidate has to pass through selection process such promotion cannot be given retrospectively from the date of actual vacancy arose. The Court also rejected the case of one Roshan Singh in the case of State of Uttar Pradesh & ors v. Roshan Singh & ors; 2006 (13) SCC 661 for promotion retrospectively after retirement. The Court in that case distinguished the judgment in the case of Bangali Prasad Sharma v. State (Writ Petition No.13240 (SS) of 1990 decided on 03.08.1995 by Lucknow Bench of Allahabad High Court) on the ground that writ petition had been filed prior to his retirement. 25. However, in the present case, I find that since there to be no selection process as such and the university only failed to constitute Screening-cum-Evaluation Committee. Thus, career of the petitioner got jeopardised for none of his fault more especially, in the circumstances, when there was no question of requirement of any existing vacancy. It is upon maturity of claim that a candidate is required to undergo process of self assessment and assessment by a duly constituted screening committee. The university seems to have not considered promotion for no justifiable reasons. There may not have been a duly constituted executive council in existence but that power could have been exercised by the Vice Chancellor under Section 7(c) (5). 26. As the title of committee, Screening-cum-Evaluation Committee discloses, the only work is to make assessment of previous work of a candidate. CAS is a scheme to remove stagnation and give promotion to a teacher upto the highest level of professor upon achieving certain years of service at every stage in hierarchy. CAS scheme is not dependent upon the creation of post. CAS is a scheme to remove stagnation and give promotion to a teacher upto the highest level of professor upon achieving certain years of service at every stage in hierarchy. CAS scheme is not dependent upon the creation of post. It gives designation and pay scale and with further promotion and retirement, post being co terminus stands abolished. 27. Just because Central Government has now issued a circular that Vice Chancellor would exercise such powers as if was not there. In fact, it was always with the Vice Chancellor and he should have exercised this power. The University's executive council is very important component in the administrative set up and since majority of the administrative orders are passed by the Vice Chancellor after the matter is already through the executive council, the Vice Chancellor cannot be permitted to just sit back and relax for there being no executive council. When the statute itself contemplates a situation and any such eventuality appears when the executive council has run out its term, Vice Chancellor will have to exercise power by constituting selection committee for all purposes. It is unfortunate that the vice Chancellor sat idle in the matter. The power was there and the Vice Chancellor needed no further executive directions from the central government. It is good that now the central government has now passed the order. 28. In the circumstances, in my considered view, the petitioner's claim for promotion from Associate Professor to Professor was wrongly not considered and the matter remained kept pending for no justifiable reasons. 29. Thus, petitioner is held entitled to be given notional promotion w.e.f. the date it has become due in order to give him the benefits and advantages in the fixation of pay and final retirement dues provided of-course his work and conduct at the relevant time as submitted him gets through a Screening-cum-Evaluation Committee and with the approval of Vice Chancellor. However, petitioner would not be entitled to for the actual payment of salary as he is not working as a Professor during the period in question. 30. However, petitioner would not be entitled to for the actual payment of salary as he is not working as a Professor during the period in question. 30. Coming to the second point regarding petitioner's claim for reemployment, learned counsel for the petitioner in this regard placed reliance upon the UGC Regulation 2.1 which provided for re employment to be offered to Assistant Professor, Associate Professor, Professor and Senior Professor after superannuation but the UGC regulations also carry a proviso to the regulations that every reemployment shall be strictly in accordance with the guidelines prescribed by the UGC from time to time. Now the question that arises for consideration of the Court is, as to whether the proviso would take away the mandate contained under the principal regulations 2.1. U.G.C. Regulation 2.1 are reproduced hereunder: “2.1 Subject to the availability of vacant positions and fitness, teachers, such as Assistant Professor, Associate Professor, Professor and Senior Professor only, may be re-employed on contract appointment beyond the age of superannuation, as applicable to the concerned University, college and Institution, up to the age of seventy years. Provided further that all such re-employment shall be strictly in accordance with the guidelines prescribed by the UGC, from time to time. 31. It has been argued on behalf of Union of India that since the guidelines have been issued by the UGC did provide for re-employment to Professor only and proviso says that re-employment has to be strictly in accordance with the guidelines, both have to be read together in order to find out the solution, whereas it has been argued on behalf of the petitioner that, when the substantive provision provides for reemployment to Assistant Professor, Associate Professor, Professor and Senior Professor then merely because the proviso refers to guidelines, it would not take away the main substantive provision. 32. It is submitted that regulations are silent about the manner and method of re-employment and so for this limited purpose, the UGC guidelines may have to be followed. In order to find answer to the question and to appreciate the arguments advanced by the rival parties, it becomes necessary to find out as to under which provision of law, the guidelines are framed by the U.G.C. The U.G.C. Act, 1956 does provide for power of the commission to frame regulations but does not provide for framing of any guidelines. Second 26 of the UGC Act, 1956 is reproduced hereinuder:- 26. (1) The Commission may, by notification in the Official Gazette, make regulations consistent with this Act and the rules made thereunder– (a) regulating the meetings of the Commission and the procedure for conducting business thereat; (b) regulating the manner in which and the purposes for which persons may be associated with the Commission under section 9; (c) specifying the terms and conditions of service of the employees appointed by the Commission; (d) specifying the institutions or class of institutions which may be recognised by the Commission under clause (f) of sub-section 2; (e) defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University, having regard to the branch of education in which he is expected to give instruction; (f) defining the minimum standards of instruction for the grant of any degree by any University; f) defining the minimum standards of instruction for the grant of any degree by any University; (g) regulating the maintenance of standards and the co-ordination of work or facilities in Universities. (h) regulating the establishment of institutions referred to in clause (ccc) of section 12 and other matters relating to such institutions; (i) specifying the matters in respect of which fees may be charged, and scales of fees in accordance with which fees may be charged, by a college under sub-section (2) of section 12A; (j) specifying the manner in which an inquiry may be conducted under subsection (4) of section 12A;" 33. Upon reading of the various clauses of Section 26, I do not find anywhere any authority being vested with the commission to frame guidelines. Further, I find that Section 27 provides that no regulations shall be made except with the previous approval of the Central Government. Section 27(2) is reproduced hereinunder:- "27.(2) No regulation shall be made under this section except with the previous approval of the Central Government." 34. Still further, Section 28 provides that every regulation has to be placed before both the Houses of Parliament which has to approve the same. Section 28 reproduced herinunder:- "28. Section 27(2) is reproduced hereinunder:- "27.(2) No regulation shall be made under this section except with the previous approval of the Central Government." 34. Still further, Section 28 provides that every regulation has to be placed before both the Houses of Parliament which has to approve the same. Section 28 reproduced herinunder:- "28. Every rule and every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session, or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may, be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation." 35. A bare reading of the aforesaid provisions makes it clear that both the Houses of parliament may agree with the regulations or may provide for modifications in the rule or regulation and then it is, accordingly re-framed and passed. The UGC, therefore, could not have framed guidelines to supersede its regulations. However, in the general power of superintendence and in absence of regulations, an authority can issue executive directions and even frame guidelines to regulate the subject matter procedurally. Subject matter of model guidelines shows that it had been framed subsequently for a particular subject only i.e. reemployment of superannuated teachers. 36. Since the regulations are absolutely silent about the manner and method of re-employment of such teachers, so to that extent guidelines may still be adhered to. It appears that since the guidelines were framed prior to regulations coming into force in the year 2018, they were pursued but once the regulations have been framed then the regulations will supersede the guidelines and provisions contained in the regulation shall prevail also and regulations approved by Parliament shall have supremacy over and above all executive instructions and guidelines. 37. 37. Besides the above, the law is very much clear that proviso cannot take away the mandate contained under the principal provision and, therefore, in my considered view, the proviso will only be limited to the extent that whatever is not provided under the regulations can be borrowed from the guidelines in the matter of re-employment of retired teachers. In the case of Ali M.K.N. State of Kerala; (2003) 11 SCC 632, Supreme Court has held that normally function of proviso is to carve out an exception out of enactment or to qualify something done in the main provision. Vide paragraph 10, the Court has held thus: 10. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Survey; 1880 (5) QBD 170, (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha ( AIR 1961 SC 1596 ) and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta ( AIR 1965 SC 1728 ); when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. "If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso...." said Lord Watson in West Derby Union v. Metropolitan Life Assurance Co. (1897 AC 647)(HL). Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. (1897 AC 647)(HL). Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. "This word (proviso) hath divers operations. Sometime it worketh a qualification or limitation; sometime a condition; and sometime a covenant" (Coke upon Littleton 18th Edition, 146) "If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant, and the earlier clause prevails.... But if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole" (per Lord Wrenbury in Forbes v. Git [1922] 1 A.C. 256). 38. From the above view expressed by the Supreme Court, it is very much clear that scope of proviso is to be interpreted and understood vis- a-vis the main language of the enacting part of the statute. If the enacting part of the statute does not deal with the particular subject matter then aid can be had of proviso to find out intendment of legislature while interpreting the provisions of statute. It is true that proviso qualifies or limits scope of a provision but it is to be seen contextually. In the present case while main provision of regulations do permit re-employment to all the three categories of teachers namely Assistant Professor, Associate Professor and Professor to be offered reemployment after retirement but the manner and method in which reemployment is to be offered is not detailed out or the conditions of reemployment otherwise is not provided for in the main provision. In the circumstances, therefore, the proviso is to be given purposive interpretation so as to read substantive provision meaningful as per its plain language and also to be read down with procedures and other conditions given under the guidelines. However, it is to be kept in mind that main provision of the regulation is having a statutory backing that guidelines do lack and, therefore, if the guidelines only provided for a professor to be given re-employment, it is to be read down in terms of the main provisions as contained in Regulation 6.2. However, it is to be kept in mind that main provision of the regulation is having a statutory backing that guidelines do lack and, therefore, if the guidelines only provided for a professor to be given re-employment, it is to be read down in terms of the main provisions as contained in Regulation 6.2. 39. In the case of Prakash & ors v. Phulvati & ors; 2016 (2) SCC 36 wherein the Supreme Court has held that scope of proviso or exception to the main provision is to be seen contextually and to ensure that the object for which the provision is enacted is not distorted. Vide paragraphs 19 to 21, the Court held thus: "19. Interpretation of a provision depends on the text and the context. Normal rule is to read the words of a statute in ordinary sense. In case of ambiguity, rational meaning has to be given. In case of apparent conflict, harmonious meaning to advance the object and intention of legislature has to be given. 20. There have been number of occasions when a proviso or an explanation came up for interpretation. Depending on the text, context and the purpose, different rules of interpretation have been applied. 21. Normal rule is that a proviso excepts something out of the enactment which would otherwise be within the purview of the enactment but if the text, context or purpose so require a different rule may apply. Similarly, an explanation is to explain the meaning of words of the section but if the language or purpose so require, the explanation can be so interpreted. Rules of interpretation of statutes are useful servants but difficult masters. Object of interpretation is to discover the intention of legislature." 40. The petitioner being Associate Professor was very much entitled to be re-employed immediately after he attained superannuation. Now the issue remains to be resolved, whether there existed any vacancy as required under the regulation and whether even today any such vacancy exists. 41. Sri Sanjeev Singh, learned Senior Advocate has argued that there existed vacancy and that was why the University who had issued advertisement to invite applications for selection and appointment in the department of Dharm Viggyan from where petitioner retired. This advertisement was uploaded on official website of the University on 28.06.2023 as Advertisement No.11/2023/2024 with five teaching posts. Copy of the advertisement is filed as Annexure-12 to the writ petition. This advertisement was uploaded on official website of the University on 28.06.2023 as Advertisement No.11/2023/2024 with five teaching posts. Copy of the advertisement is filed as Annexure-12 to the writ petition. Vide paragraph 17 of the writ petition, it has been pleaded thus: "17. That there are vacant posts in the Department of Dharmagam, Faculty of Sanskrit Vidya Dharm Vigyan, Barnas Hindu University, Varnasi and the petitioner fulfills all the eligibility conditions for further appointment for further period of 5 years in accordance with the UGC Regulation 2.1 but the respondent University is illegally rejected the same therefore the impugned order passed by the University on 22.05.2023 is illegal, arbitrary and against the UGC Regulations." 42. In reply to the above, vide paragraph 34 of the counter affidavit filed on behalf of the University, it has been stated as under: "34. That the content of paragraph no.17 of the writ petition as stated are denied. In reply it is submitted that a suitable reply has already been given in preceding paragraph of this counter affidavit. Further, it is reiterated that as per the UGC Model Guidelines for re-employment of Superannuated Teachers, 2008 and UGCR2018 the petitioner does not fulfills the eligibility criteria for re-employment, accordingly, the order passed by the University dated 22.05.2023 and 09.10.2023 is fully based on the rules/guidelines/instructions of UGC issued from time to time." 43. Interestingly in the preceding paragraph 32 petitioner has been held to be ineligible as he retired as Associate Professor and not as Professor and as per U.G.C. Regulations, he would not be entitled. Paragraph 32 of counter affidavit is reproduced hereinunder:- 32. That since Dr. Bhaktiputra Rohtam has already been retired on 31.12.2022 and as per clause 6.3(V) of UGC Reguation, 2018 "For the promotion under the CAS, the applicant teacher must be on the role and in active service of the University/ College on the date of consideration by the Selection Committee." Therefore, his case of promotion on the post of Professor under CAS cannot be placed before the Selection Committee and on 09.10.2023 detailed and reasoned order has been already passed by the Vice Chancellor, BHU in respectful compliance to the order dated 07.08.2023 passed by the Hon'ble High Court. It is further submitted that with regard to re-employment, it is pertinent to mention here that clause 2.1 of UGC Regulation, 2018 deals with re-employment of retired teachers of the University, which is reproduced below:- "subject to availability of vacant positions and fitness, teachers as Assistant Professor, Associate Professor, Professor and Senior Professor only, may be re-employed on contract appointment beyond the age of superannuation, as applicable to the concerned University, College and Institution, up to the age of seventy years. Provided further that all such re-employment shall be strictly in accordance with the guidelines prescribed by the UGC, from time to time." It is also pertinent to mention here that, clause 2.1 of the UGC Regulation, 2018 is only enabling in nature and does not confer any right for reemployment. In case of necessity and on fulfillment of the condition laid down in the said Clause, the University may extend re-employment. The UGC vide letter No.F.3-1/194(PS) Pt file dated 15th February, 2008 has provided the Model Guidelines for re-employment of superannuated teachers eligibility criteria of superannuated teachers eligible for re-employment shall be as per the said guidelines is reproduced below:- 3. Eligible Category: The category of superannuated teachers eligible for re-employment shall be: c) Professor only, in case of University; and d) Professors, Readers and Lecturers (Selection grade) only in the case of Colleges" In addition to the above, a provision has also been made at Clause 5(a) & (b) of Model Guidelines for re-employment of superannuated Teachers that, the institution shall follow the following principles, while taking up the cases of superannuated teachers for re-employment: c) There shall be vacancies of teachers at the University Department or at the College, remaining unfilled for at least one year. d) The number of teachers to be re-employed in a University Department and/or College at any given time shall be limited to 50% of the vacancies identified, as above-" The UGC Model guideline for re-employment of Superannuated Teachers, 2008 has not been superseded by UGC Regulation, 2018 and still in existence and impugned order has been passed accordingly. In view of the above the petitioner does not fulfill the eligibility criteria. The category of superannuated teachers eligible for re-employment shall be: a) Professor only, in the case of University: Since, Dr. In view of the above the petitioner does not fulfill the eligibility criteria. The category of superannuated teachers eligible for re-employment shall be: a) Professor only, in the case of University: Since, Dr. Bhaktiputra Rohtam has superannuated from the service as Associate Professor therefore, his request for re-employment after superannuated /end of the academic session 2022-23 cannot be considered." 44. In Rejoinder affidavit pleadings have been raised vide paragraph 12 that U.G.C. guidelines being statutory would prevail and that it provides for extension of retired teachers upon re-employment upto 70 years of age and it has also been pleaded vide paragraph 13 of the rejoinder affidavit that post still exists in the department. Thus, it is sought to be pleaded that selection could not be held despite advertisement. 45. I have already held above that U.G.C. Regulations would prevail over the guidelines and whenever guidelines are contrary to regulations, these guidelines would be taken to have stood repealed. So if regulations provide for Assistant Professor and Associate Professor also to be entitled for re-employment, petitioner would be equally entitled. Since it is not the case of respondent-University that petitioner is not entitled to re-employment on his merit, it is held that he is entitled for re-employment as teacher in the department of Dharmagam if vacancy is existing. 46. Thus, in view of the above, writ petition succeeds and is allowed. The orders passed by the Registrar and Vice Chancellor dated 22.05.2023 and 09.10.2023; respectively, impugned in the writ petition and filed as Annexure-1 & 2, are hereby quashed and following directions are issued:- (i) The Vice Chancellor shall immediately constitute a Screening-cum-Evaluation Committee to look into and screen out documents of self appraisal etc. submitted by the petitioner on 04.11.2021 received in CAS promotion cell on 05.01.2022 and take a decision whether petitioner was eligible on merits on the basis of documents produced by him to be promoted as professor under CAS and if it finds favour with the claim of the petitioner, it shall accord notional promotion to the petitioner with consequential benefits of pay in question as admissible to such promotional post of Professor for revision of pension and other retirement dues only w.e.f. the date petitioner attained his age of superannuation and, accordingly, arrears of difference of pension and other retirement dues shall be paid. Appropriate decision shall be taken within a maximum period of three months from the date of production of certified copy of this order. (ii) The respondent-University is directed to give re-employment to petitioner as teacher in the department of Dharmagam, Faculty of Sanskrit Vidya Dharm Vigyan, Banaras Hindu University, Varanasi if vacancy exists and appropriate order shall be passed in the above regard within three weeks of production of certified copy of this order. 47. Cost made easy.