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Judgment
The petitioner, who had been working on the post of Associate Professor with the respondent No. 2 North Eastern Hill University, Shillong
[''the University''] in its department of Information and Technology and who was granted three advance increments for having obtained Ph.D.
Degree while in service, has preferred this writ petition on being aggrieved of the orders dated 26.05.2015, 08.06.2016 and 15.07.2016
(Annexures - 15, 18 and 20) whereby, the said grant of advance increments was withdrawn and recovery of the payment already made was
ordered. The petitioner has also questioned the communication dated 06.04.2015 (Annexure - 14), as said to have been sent by the Under
Secretary to the University Grants Commission [''UGC''] on whose basis, the advance increments given to him were withdrawn.
Having heard learned counsel for the parties and having perused the material placed on record, this Court is clearly of the view that the action of
the respondent-University against the petitioner suffers from the fundamental flaw of want of adherence to the basic principles of natural justice
where he was not afforded an adequate opportunity of hearing before taking the action prejudicial to his interest. Therefore, on the given set of
facts and circumstances, it appears just and proper that while setting aside the orders impugned, the matter be restored for reconsideration of the
Vice Chancellor of the respondent-University in accordance with law. In this view of the matter, dilation on all the factual aspects and other
contentions of the parties on merits is not necessary; only a brief reference to the background aspects would suffice.
The background aspects relevant for the present purpose, put in brief, are that the respondent-University issued the Employment Notice dated
07.12.2011, inviting, inter alia, applications on the prescribed format for appointment of two Associate Professors in the Department of
Information and Technology. The essential qualification for this post of Associate Professor was stated as under:-
Associate Professor
A Ph.D. Degree with First Class at Bachelor''s or Master''s Degree in the appropriate branch of Engg. & Tech. and experience of
eight years in teaching, research and/or industry at the level of Lecturer or equivalent grade, excluding period spent on obtaining the
research degree. OR In the event the candidate is from industry and the profession, the following shall constitute as essential :
(i) First Class Master''s Degree in the appropriate branch of Engg. & Tech.;
(ii) Significant professional work which can be recognized as equivalent to a Ph.D. Degree in appropriate branch of Engg. & Tech.
and industrial/professional experience of eight years in a position equivalent to the level of Lecturer, provided that the recognition for
significant professional shall be valid only if the same is recommended unanimously by a 3-Member Committee of Experts appointed
by the Vice-Chancellor of the University.
(iii) Without prejudice to the above, the following conditions may be considered desirable:
a. Teaching, research, industrial and/or professional experience in a reputed organization;
b. Published work, such as research papers, patents filed/obtained, books, and/or technical reports;
c. Experience of guiding the project work/dissertation of PG/Research Students or supervising R&D projects in industry.
The petitioner applied under the Employment Notice aforesaid and was indeed appointed as the Associate Professor by the appointment order
dated 25.07.2012. Admittedly, at the relevant time, the petitioner was not possessing the Ph.D. Degree but was, obviously, taken as qualified with
reference to the qualification provided in the alternative i.e., of possessing First Class Master''s Degree in the appropriate branch of Engineering
and Technology and also possessing significant professional work, which could be recognized as equivalent to a Ph.D. Degree.
After having joined the service as Associate Professor with the respondent-University, the petitioner acquired a Degree of Ph.D. in Engineering
in the month of July 2013 from Jadavpur University, Kolkata. Consequently, and with reference to UGC Regulations, 2010 and the respondent-
University Circular dated 28.07.2011, the petitioner was earlier granted three advance increments towards the incentive for having enrolled in
Ph.D. by an order dated 26.03.2014. However, by the subsequent order dated 10.04.2014 as issued in supersession of the earlier order, the
petitioner was granted three advance increments at the rate of 3% towards the incentive for obtaining Ph.D. Degree on 30.07.2013 from Jadavpur
University, Kolkata. The pay of the petitioner was re-fixed accordingly.
It appears that on 12.09.2014, the respondent-University sought a clarification from the Under Secretary, UGC on the question as to whether
the Associate Professors, who had been recruited without Ph.D. (as their professional work was recognized as equivalent to Ph.D.) were entitled
to three advance increments for enrolling to Ph.D. programme or having obtained Ph.D. Degree after joining the University. This communication
dated 12.09.2014 was followed up with a reminder dated 21.11.2014. The Under Secretary, UGC responded to the aforesaid query by the
communication dated 06.04.2015, the contents whereof read as under:
With reference to your letter No. F.18420/Estt.11/2013-8503 dated 21st November 2014 on the subject cited above, I am directed to inform
you that in order to accommodate the Teachers in Department of Engineering and Technology, an opinion of incumbents from industry having
industrial/professional experience of eight years in a position equivalent to the level of Lecturer, is been stipulated in UGC Regulations on Minimum
Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standard
in Higher Education 2010. Since, Ph.D. is one of the mandatory requirements for direct recruitment to the post of Associate Professors in the field
of Engineering and Technology; therefore, advance increments are not entitled for pursuing Ph.D. while in service to Associate Professors who are
recruited on behalf of their industrial/professional experience.
Having received such communication from the Under Secretary, UGC, it appears that the respondent-University straight away decided that the
advance increments granted to the petitioner were required to be withdrawn and informed the petitioner accordingly by the impugned
communication dated 26.05.2015 (Annexure-15) that reads as under:
Perhaps you aware Dr. D. Kandar, Associate Professor from your Department had applied for grant of advance increments for holding Ph.D.
degree. In this connection, I am directed to inform you that in order to have clarity pertaining to grant of advance increments for holding Ph.D. to
the Associate Professor, the matter was referred to UGC on 12.9.2014 citing the case of Associate Professor in the Deptt. on Information
Technology. (A copy of the letter is enclosed vide Annexure-A for ready reference).
Subsequently a reminder was sent to UGC on 21.11.2014 to furnish the required information. (copy enclosed vide Annexure-B).
In response, Smti. Reeta Goyal, Under Secretary, U.G.C. vide her letter No. F.15-3/2012(PS) Misc dated 6th April, 2015(Annexure-C) clarified
that Associate Professor is not entitled for advance increments since Ph.D. is one of the mandatory requirements for Associate Professorship.
In view of the clarification received from UGC, we are constrained to say that the 3 advance increments granted to you vide order No. F. 18-
407/Estt.II/203 - 7761 dated 26th March, 2014 will have to be withdrawn and for which a separate order is being issued,
This issues with the approval of the Vice-chancellor.
The petitioner responded to the aforesaid communication with the assertion that he was entitled to the said three non-compounded increments
as per the UGC Regulations 2010. However, without adverting to what the petitioner had stated in his representation, the respondent-University
issued the impugned order dated 08.06.2016 (Annexure-18) withdrawing the advance increments granted to the petitioner and re-fixed his pay
accordingly. The petitioner yet further protested by way of the letter dated 13.06.2016 (Annexure-19), but the respondent-University proceeded
to order that the excess payment made to the petitioner to the tune of Rs.3,53,878/- (Rupees three lakhs fifty-three thousand eight hundred and
seventy-eight) would be recovered in eight installments starting from the month of July 2016.
Aggrieved by the action aforesaid, the petitioner preferred this writ petition, which was initially considered on 18.08.2016 and while issuing
notices to the respondents, further recovery from the petitioner was stayed. The interim order dated 18.08.2016 was finally confirmed on
29.11.2017.
The petitioner would maintain that the actions of the respondents are contrary to the MHRD letter dated 31.12.2008, clause 9.4 (i) of UGC
Regulations, 2010 and para 7 of the University Circular dated 28.07.2011. According to the petitioner, the actions of the respondents are based
upon the Under Secretary, UGC''s letter dated 06.04.2015, which is contrary to the subsequent D.O. letter of the Secretary, UGC addressed to
the Vice Chancellor of the University (Annexure-17); and the actions of the respondents are also violative of his fundamental rights under Article
14 and 16 of the Constitution of India as also the right under Article 300A of the Constitution of India.
The respondents have submitted in their reply that Ph.D. being the essential qualification for the post of Associate Professor, the matter was
rightly dealt with, particularly in the light of the clarification sent by the UGC in the communication dated 06.04.2015.
As observed at the outset, the other contentions of the learned counsel for the parties on merits are not being taken up for adjudication in this
order as the impugned action on the part of the respondent-university is squarely against the basic principles of natural justice, and hence, the
impugned orders deserve to be set aside while leaving it open for the Vice Chancellor of the respondent-University to take appropriate decision in
the matter after giving adequate opportunity of hearing to the petitioner.
The facts of the case leave nothing to doubt that the respondent-University in the first place found the petitioner entitled to the advance
increments in terms of the UGC Regulations and granted the same. The communication dated 06.04.2015, by itself could not have been taken
decisive of all the issues and, in any case, a decision to withdraw the advance increments already granted could not have been taken without
affording an opportunity of hearing to the petitioner. Though in a case of any illegal payment, the principles of natural justice are not to be applied
unless a matter of legal grievance and prejudice is made out, but the present one had been a case where the advance increments were indeed
allowed to the petitioner and even as per the other communication from the UGC, the advance increments were to be strictly as per Clause 9.4 (i)
and 9.7 of schedule for clause 6.8.0 of the UGC Regulations, 2010. It is also a fact that the respondent-University did appoint the petitioner
without his possessing Ph.D. Degree as such in view of the alternative qualification provided for the post in question.
This Court is not pronouncing finally on the merits of the case, but the factors mentioned hereinbefore do deserve their own consideration,
particularly when the increments already granted were sought to be withdrawn and recovery was sought to be effected. In the circumstances of this
case, it appears necessary that a considered decision is taken in the matter by the Vice Chancellor concerned after giving adequate opportunity of
hearing to the petitioner.
It has been pointed out that three instalments had already been recovered from the petitioner and the remaining recovery has remained stayed
pursuant to the interim order passed by this Court. It has also been pointed out that since after filing of the writ petition, the petitioner has left the
job with the respondent-University.
Having regard to the circumstances of the case, it appears appropriate that the petition and rejoinder affidavits as filed in this matter by the
petitioner be treated as his representation against the proposed action of withdrawal of three advance increments.
Accordingly and in view of the above, this petition stands allowed in the manner that the impugned orders dated 26.05.2015, 08.06.2016 and
15.07.2016 are set aside; and the matter is restored for reconsideration of the Vice Chancellor of the respondent-University. The petition as also
the rejoinder affidavits as filed in this matter by the petitioner shall be treated as his representation against the proposed action of withdrawal of
three advance increments and the same shall be considered by the Vice Chancellor of the respondent-University without being prejudiced by any
other submissions made on behalf of the University in this matter and after examining the complete record. The Vice Chancellor shall also extend
an opportunity of personal hearing to the petitioner and for that matter, the petitioner shall remain present before the Vice Chancellor on
05.02.2018. It shall be required of the Vice Chancellor to examine the matter dispassionately and objectively and to take appropriate decision in
the matter by way of a speaking order at the earliest, preferably within 30 days from the date of appearance of the petitioner. No costs.