Full Judgement
Bombay High Court
Manohar V Lokhande vs Union Of India And 5 Ors on 1 February, 2024
Author: Nitin Jamdar
Bench: Nitin Jamdar, M.M. Sathaye
2024:BHC-OS:2027-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 579 OF 2021
Manohar V. Lokhande,
Age- 52 Years, Occ.: Service,
R/at. A-404, Galaxy Classique ABCD CHS,
Near BMC Rajiv Gandhi Garden,
Mitha Nagar, Goregaon (West),
Mumbai-104. ... Petitioner.
V/s.
1. Union of India
Through its Secretary,
Ministry of Education,
Department of Higher Education,
having office at 122-C,
Shastri Bhavan, New Delhi 110001.
SANJAY
KASHINATH 2. University Grants Commission
NANOSKAR
Through its Chairman and Secretary,
Digitally signed by
SANJAY KASHINATH
NANOSKAR
having office at Bahadur Shah Zafer Marg,
Date: 2024.02.06
17:31:53 +0530 New Delhi- 110002.
3. State of Maharashtra
Through Principal Secretary,
Higher Education Department,
Government Maharashtra, Fourth floor,
Mantralaya, Mumbai-32.
4. State of Maharashtra
Through its Director (Higher Education),
Having office at Central Building, Pune-1.
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5. University of Mumbai
Through its Registrar,
Having Office at Fort Campus,
University of Mumbai, Mumbai 400032.
6. Principal, PTVA's Sathaye College,
Vile-Parle East, Mumbai 57. ... Respondents.
Dr.Abhinav Chandrachud with Mr.Pramod Kathane
for the Petitioner.
Mr.Rui Rodrigues with Mr.Ajinkya Jaibhave for Respondent No.1.
Mr.Rui Rodrigues with Mr.Jainendra Sheth for Respondent No.2.
Mr.Vishal Thadani, Addl.GP for Respondent Nos.3 and 4.
Mr.Robin Fernandes for Respondent No.5.
Mr.Neel Helekar with Ms.Yesha Thacker i/b. L.J.Law
for Respondent No.6.
CORAM : NITIN JAMDAR, AND
M.M. SATHAYE, JJ.
DATE : 1 February 2024.
JUDGMENT :
(Per Nitin Jamdar, J.)
Rule. Rule made returnable forthwith. Respondents waive service. Taken up for disposal.
2. The petitioner was promoted from Associate Professor to Professor. The issue for consideration in this petition is regarding the
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date of the promotion. This question arises in the following factual and legal backdrop.
3. The Petitioner was appointed as a Lecturer in Chemistry on 26 November 1997 by Respondent No.6 College through the University Selection Committee. On 22 October 2002, the Petitioner submitted his thesis for the awarding of a Ph.D. degree, which was granted to the Petitioner on 6 June 2003. Having submitted the Ph.D. thesis before 31 December 2002, the Petitioner was exempted from appearing in the National Eligibility Test. Respondent No.5, the University of Mumbai, issued the order of approval for the appointment of the Petitioner as a Lecturer on 10 February 2004.On 22 October 2006, the Petitioner was appointed as an Assistant Professor. Thereafter, on 22 October 2011, he was promoted to Assistant Professor (Senior Scale). Furthermore, on 22 October 2014, the Petitioner was promoted to Associate Professor based on the completion of three years of service as Assistant Professor (Senior Scale).
4. The University Grant Commission, by Notification dated 30 June 2010, prescribed minimum eligibility/qualification for the appointment of teachers and promotion under the Career Advancement Scheme for Professors in undergraduate and post- graduate colleges. The Petitioner applied to Respondent No.6 College on 12 July 2017, informing about acquiring the minimum eligibility for promotion from Associate Professor in Stage-4 to
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Professor in Stage-5 under the Career Advancement Scheme and requesting to forward the proposal to Respondent No.5 University for necessary action. Further correspondence ensued, and ultimately, by communication dated 11 November 2020, Respondent No.5 communicated the recommendation of the Selection Committee dated 17 August 2020, promoting the Petitioner to Professor (Stage-
5). This order stated that the Petitioner's promotion would be from the date the promotion was granted and not from the date the Petitioner acquired the eligibility. This part of the order is impugned by the Petitioner by way of this writ petition.
5. Replies have been filed by the Respondents and the rejoinder has been filed by the Petitioner.
6. We have heard Dr.Abhinav Chandrachud for the Petitioner, Mr.Rui Rodrigues for Respondent Nos.1 and 2, Mr.Vishal Thadani, Additional Government Pleader for Respondent Nos.3 and 4, Mr.Robin Fernandes for Respondent No.5 and Mr.Neel Helekar for Respondent No.6.
7. The dispute in this petition centers around Clause 7.3 of the Corrigendum dated 10 May 2019 issued by the Government of Maharashtra. The Corrigendum in the left side column refers to particulars of the Government Resolution (GR) dated 8 March 2019 wheres in the right side column refers to amendment. Clause 7.3 of the said Corrigendum reads thus:
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Para Particulars in G.R. Amendment
dated 8.3.2019
7.3. If a candidate applies If a candidate applies for promotion
VI.i. for promotion on from Level 10 to Level 11 and
completion of the Level 11 to Level 12 on completion
minimum eligibility of the minimum eligibility period
period and is and is successful, the date of
successful, the date of promotion shall be from that of promotion shall be minimum period of eligibility for from that of both Colleges and Universities. minimum period of eligibility. If a candidate applies for promotion from level 12 to 13 A and Level 3A to Level 14 on completion of the minimum eligibility period and is successful, the date of promotion shall be the date of selection by CAS for both Colleges and Universities.
If a candidate applies for promotion from Level 14 to Level 15 in Universities on completion of the minimum eligibility period and is successful, the date of promotion shall be the date of selection by CAS.
The question is whether the Petitioner would be governed by the position as per the Government Resolution (GR) dated 8 March 2019 or by the amendment. The GR dated 8 March 2019 has continued the position that existed earlier. The difference between the two is that if the position as per the GR dated 8 March 2019 is to be applied, then the Petitioner would be considered as being promoted from the date of completion of the minimum eligibility period. As per the amendment, it would be from the date of selection by both the college and the university.
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8. Though the Petitioner has sought to raise various grounds in the petition, including the challenge to the Corrigendum dated 10 May 2019, the Petitioner has pressed the petition on a limited ground that is the relevant date for promotion in the facts of the present case. It is contended that the Petitioner had applied, seeking the benefit of promotion under the Career Advancement Scheme much before the Corrigendum dated 10 May 2019. Without the fault of the Petitioner, the proposal was pending, and therefore, the subsequent Corrigendum should not take away the rights of the Petitioner who had applied before the date of the Corrigendum. The Petitioner also relied on Clause 7.3-I of the GR dated 8 March 2019, which lays down a timeline for the completion of the process for the Career Advancement Scheme to be within six months from the receipt of the application. The Petitioner has placed reliance on the decisions of the Supreme Court in the cases of Y.V. Rangaiah v. J. Sreenivasa Rao1 and Deepak Agarwal v. State of Uttar Pradesh.
9. The learned counsel for the Respondents contend that irrespective of the application, the Petitioner would be governed by the Corrigendum, and therefore, the date of promotion shall be the date of selection. It is contended that there was no negligence or fault on the part of either the College, the State Government, or the University. Because there was a remark in the Service Book of the Petitioner, there was a delay in finalizing the promotion. The learned
1 (1983) 3 SCC 284
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counsel for the Respondents accordingly opposed the prayer of the Petitioner.
10. The issue in respect of delay in preparing the panel for promotion resulting in depriving of chance of promotion in view of the subsequent amendment in the rules for promotion came up before the Supreme Court for consideration in Y.V. Rangaiah. The Supreme Court referred to the instructions issued by the Union Government. It is observed thus:
"3. Apart from the aforesaid rules, the government have also issued very clear instructions from time to time viz. GO Rt. No. 1042-G.A. (Ser-A) Department dated June 15, 1966, GOMs No. 485-G.A. (Ser-A) Department dated July 26, 1968, GOMs No. 202-G.A. (Ser-A) Department dated April 4, 1969 and Memo No. 1476/Service/A/72-2 dated November 7, 1975. The Memo dated November 7, 1975 in para 5 and 6 states:
"5. It needs hardly be urged that prompt preparation of panels is essential both for increasing administrative efficiency, and also for filling up vacancies without delay.
6. All the appointing authorities are directed to bear in mind the instructions issued on the preparation of panels and ensure that the panels are prepared promptly in the month of September every year."
..... ..... ..... ..... .....
9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the
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year 1976 and transfer or promotion to the post of Sub- Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than Respondents 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub- Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."
(emphasis supplied)
Thereafter the aforesaid decision was referred to by the Hon'ble Supreme Court in the case of Deepak Agarwal, wherein the Hon'ble Supreme Court held as under:
"26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the "rule in force" on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah case [(1983) 3 SCC 284 : 1983 SCC (L&S) 382] lays down any particular time-frame, within which the selection process is to be
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completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment."
(emphasis supplied)
Therefore, though the Petitioner has the right to be considered in light of the existing rules, which would imply the rules in force when the consideration took place, if there is a particular time-frame for the selection process to be completed, then these rules would not apply. With this position of law, we have examined the facts of the present case.
11. The stipulation contained in Clause-7.3-I of the GR 8 March 2019 reads thus:
"7.3.The criteria for promotions under Career Advancement Scheme laid down under these Rules shall be effective from the date of notification of these Rules. However, to avoid hardship to those faculty members who have already qualified or are likely to qualify shortly under the existing Rules. a choice may be given to them, for being considered for promotions under the existing Rules. This option can be exercised only within three years from the date of notification of these Rules.
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
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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 fulfill all other criteria mentioned in these Rules, as on and till the date on which these Rules are notified, can be considered for promotion from the date, on or after the date, on which they fulfill these eligibility conditions."
(emphasis supplied)
Thus, it is stated that, in order to avoid any delay in holding the selection committee meeting, the College will initiate the process of screening and selection, and complete the process within six months of the receipt of the application. It is also stated that, in order to avoid any hardship, the candidates who fulfill all criteria mentioned in the Rules as of and up to the date these Rules are notified, can be considered for promotion from the date they fulfill the eligibility criteria/conditions.
12. The Petitioner submitted an application to the Respondent-College on 12 July 2017, requesting to send his proposal for promotion under the Career Advancement Scheme. It is submitted that his placement was due on 22 October 2017. Thereafter, the Petitioner has placed on record a communication received on 30 July 2018 from the University to the Respondent- College, stating that for the promotion of the Petitioner under the Career Advancement Scheme, a No Objection Certificate (NOC) is
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required to be obtained from the Joint Director of Education, and thereafter the proposal should be submitted. The Petitioner submitted various reminders, to which the Respondent-Management replied to the Petitioner on 7 May 2019, stating that the application cannot be forwarded to the University as the College has not applied for the mandatory NOC from the office of the Joint Director of Education. The Petitioner again called upon the Respondents to complete the formalities at the earliest and addressed communication to the Director of Higher Education and the University. The Petitioner has annexed the communication dated 9 December 2019 issued by the Respondent-Management to the Joint Director of Education seeking to grant NOC. Immediately thereafter, on 5 February 2020, the NOC was granted, and thereafter the order of promotion was issued. However, as stated earlier, in the meanwhile, a Corrigendum was issued on 10 May 2019, which has stipulated the date of promotion as "from the date of the order."
13. In the reply affidavit filed on behalf of the Respondent- Management, the communication issued by the Respondent- Management in respect of NOC is sought to be placed on record. It is stated by the Respondent-Management that they made several correspondences with the University and the State for the grant of NOC. It is sought to be contended that because there was a remark in the Service Book of the Petitioner, the process of granting NOC was delayed. However, this aspect is not evident in the
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correspondence that is on record. Even otherwise, the learned counsel for the Respondent-Management pointed out that the remark itself had stated that it would not affect the promotion of the Petitioner.
14. Therefore, what we have before us is merely correspondence for NOC with the State. Granting of NOC appears to be a procedural formality. Therefore, when the Petitioner applied to the Respondent-Management, requesting to send his proposal for promotion under the Career Advancement Scheme, the Government Resolution dated 8 March 2019 was in force, which stipulated that within a period of six months, the process regarding promotion needs to be completed. Nothing is placed on record through affidavits filed by the Respondent-Management or the State that it is the Petitioner who is responsible for the delay. Resultantly, for no fault of the Petitioner, even though the Government Resolution stipulated a six-month period for the process, in the present case, the entire process took time from 12 July 2017 to 11 November 2020. Therefore, this delay, for which the Petitioner was not directly responsible, has placed the Petitioner in a seriously prejudicial position. There could be cases where, though the procedure stipulated in the Government Resolution dated 8 March 2019 (which was present in the earlier Government Resolution as well) could not be adhered to because of the fault of the candidate. In such cases, question of hardship may not arise. However, the present is
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not such a case. In fact, in respect of the Petitioner, the report of the Selection Committee of the University dated 17 August 2020 itself has given the due date for promotion in the post of Professor (Stage-
5) as 22 October 2017, that is, the date on which his placement was due after the Petitioner made an application.
15. The case of the Petitioner, on the facts, is distinct, and this factual position has not been considered by Respondent No. 5 while fixing the date of promotion as "the date of the order." According to us, in light of these peculiar facts and circumstances, the Respondent-University needs to re-examine the question of granting the date of promotion to the Petitioner.
16. Accordingly, the impugned order, to the extent it gives effect to the promotion from the date specified in the order, is quashed and set aside. The Respondent-University will reconsider the effective date of the promotion to the Petitioner in light of what is observed above. The decision should be taken within a period of eight weeks from the date the order is uploaded.
17. Rule made absolute in above terms. Writ petition is accordingly disposed of.
(M.M. SATHAYE, J.) (NITIN JAMDAR, J.)
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