M.R Joshi and Ors. vs University of Kumaon,Nainital & Ors.

S.R. Singh, J.—Petitioners who are Professors in different departments of University of Kumaon, Nainital, have approached this Court under Article 226 of the Constitution for the relief of a writ of certiorari quashing the Government order dated 442000 and the consequential order dated 292000 (Annexure 8 and 9 respectively). Impugned Government order dated 442000, though addressed to Finance Officer, Lucknow University, Lucknow in response to his letter dated 2822000 encapsulates there is the two fold decision of the Government therein : firstly, that personal promotion as visualised in the earlier Government Order dated 2791994 will be effective from the date of taking over the charge and not earlier; secondly, as to cancellation of paragraph 5 of the earlier Government Order dated 2791994. So far as the order contained in the letter dated 292000 (Annexure No. 9 to the petition) is concerned, the same is in fact a notice to the petitioner TC. Pant, calling upon him to showcause as to why the double promotion granted to him first on the post of Reader and later on the post of Professor, be not rescinded the same being in antagonism of the Government Orders dated September 27, 1994 and 442000. Similar notices are said to have been issued to other petitioners as well.

We have heard Sri VB. Singh, Senior Advocate assisted by Sri P.S. Baghel for the petitioners, Sri M.C. Tripathi for the respondents 1 and 2 and Standing Counsel for the State authorities.

The foremost questions that call for the determination in this case are : firstly, whether a Reader appointed as such by promotion from the post of Lecturer under personal promotion scheme envisioned under Section 31A of the Act is entitled to promotion to the post of Professor? and secondly, whether personal promotion to the teachers of University given under Section 31A of the U.P. State Universities Act, 1973 is to take effect from the date of taking over the charge on the post of Reader or Professor, as the case may be, or with effect from the date, the Lecturer or the Reader, as the case may be, becomes eligible for being considered for grant of personal promotion to the post of Reader or Professor, as the case may be? Section 31A of the Act being relevant is excerpted below:

"3APersonal promotion to Teachers of University.(l) Notwithstanding anything to the contrary contained in any other provision of this Act, a Lecturer or Reader with the University substantively appointed under Section 31, who has put in such length of service and possesses such qualifications, as may be prescribed, may be given personal promotion, respectively to the post of Reader or Professor.

(2) Such personal promotion shall be given on the recommendation of the Selection Committee, constituted under clause (a) of subsection (4) of Section 31 in such manner and su bject to such condition as may be prescribed.

(3) Nothing contained in this section shall effect the post of the teachers of the University to be filled by direct appointment in accordance with the provisions of Section 31."

Section 31A was inserted in the Act by U.P. Act No. 9 of 1985 with effect from 10101984. It envisages that a Lecturer or Reader substantively appointed under Section 31, who has put in such length of service and possesses such qualification as may be prescribed, may be given personal promotion respectively to the post of Reader or Professor. The requisite length of service and qualifications are prescribed in the Statute 11.12B inserted by notification No. 1126/XV1859 (6) 80 dated 2831985 in the first Statute of Kumoon University and the same being germane to the controversy is quoted below:

"11.12B (1) Notwithstanding anything to the contrary contained in Statute 11.02 or in any other Statute the following categories of teachers of the University shall be eligible for personal promotion to the post of Readers or Professors, as the case may be:

Readers post

(1) Lecturers who are Ph. D. and have put in at least 13years full time continuous service as such.

(ii) Lecturers who are not Ph. D. but have put in at least 16 years full lime continuous service, as such Professor''s post:

Readers who have put in at least 10 years fulltime continuous service as such.

Explanation.Reader shall mean a teacher who has worked as Reader in a University.

(2) The service, referred to in Clause (1), must have been rendered on an approved post

(i) in permanent, temporary or adhoc capacity;

(ii) in this University or in any other University, Post Graduate or UnderGraduate College or Institute, so however that at least five years permanent service must have been rendered in this University after regular selection through the Selection Committee constituted under clause (a) of subsection (4) of Section 31 of the Act.

(3) The teacher of the University who is eligible for personal promotion shall submit a SelfAssessment Report in the proforma given in Appendix E, containing information relating to his satisfactory work, to the Registrar.

Explanation.Satisfactory work shall mean the work done with reference to the work expected from a number of the University under University Regulations, Statutes or Ordinances.

(4) The Selection Committee, constituted under clause (a) of sub section (4) of Section 31 of the Act, shall consider the SelfAssessment Report, service Record (including Character Roll) and such other relevant records as may be placed before, or as considered necessary by it. The meeting of the Selection Committee or considering cases of personal promotion shall be held at least once every year.

(5) The Selection Committee shall submit its recommendation to the Executive Council and the Executive Council shall, subject to the provisions of Clause (6), grant personal promotion on the basis of such recommendation.

(6) The benefit of personal promotion shall be admissible to Lecturers for promotion to the post of Reader only and the Reader so appointed by promotion shall not be entitled to promotion on the post of Professor.

(7) Personal promotion on the post of Reader or Professor, as the case may be, shall take effect from the date of taking over charge of the said post.

(8) As a result of personal promotion, there shall be no reduction in the work load of the teacher of the University.

(9) In case a teacher of the University is not found suitable for personal promotion he may offer himself again for such promotion after two years and he shall be considered by the Selection Committee along with the teacher of the University who have since become eligible.

(10) In case the Selection Committee does not find a teacher of the University suitable for personal promotion, it shall state the reasons.

(11) (i) The post of Reader or Professor, to which personal promotion is made, shall be deemed to temporary addition to the cadre of Professor or Reader, as the case may be, and the post shall stand abolished on the incumbent ceasing to occupy it.

(ii) On the Reader ceasing to occupy the post of Professor to which he was given personal promotion, new appointment, if any, shall be made on the post of Reader and similarly in the Lecturer ceasing to occupy the post of Reader, new appointment, if any, shall be made on the post of Lecturer."

A conspectus of Section 31A of the Act and Statute 11.12B of the Statutes would evince that the benefit of personal promotion is admissible only once. Personal promotion under Section 31A of the Act is given on the recommendation of the Selection Committee constituted under clause (a) of subsection (4) of Section 31 in such manner and subject to such condition as may be prescribed, to a Lecturer or Reader, as the case may be, "who has put in such length of service and possesses such qualifications as may be prescribed". Statute 11.12B prescribes the manner/procedure for grant of personal promotion as also the conditions subject to which it is granted. One of the conditions subject to which personal promotion is granted is visualised by Clause (6) of Statute 11.12B which reads as under:

"(6) The benefit of personal promotion shall be admissible to Lecturers for promotion to the post of Reader only and Reader so appointed by Promotion shall not be entitled to promotion on the post of Professor."

The language employed in Clause (6) of Statute 11.12B is clear and unambiguous. Double promotion under the scheme of Section 31A of the Act is not comprehended. Petitioners who were concededly given benefit of personal promotion from the post of Lecturer to the post of Reader in their respective disciplines were not entitled to further promotion to the post of Professor under the schemes visualised by Section 31A of the Act read with Statute 11.12B of the Statutes. Double promotion under Section 31A of the Act is comprehended that is to say a Reader appointed as such under Section 31A is not entitled to further promotion to the post of Professor. In the circumstances no exception can be taken to the impugned orders.

Personal promotion cannot be claimed as of right merely because the teacher concerned is possessed of the requisite qualifications and has put in the prescribed length of service. A teacher of University who is eligible for personal promotion under Section 31A of the Act is exacted to submit selfassessment report in the proforma given in Appendix ''E'' furnishing information respecting his satisfactory work to the Registrar. The term ''satisfactory work'' as nailed down in the Explanation to Statute 11.12B (3) signifies the work done with reference to the work expected from a member of the University under the Act, Rules and Regulations. Executive Council is clothed with the power to grant personal promotion on the basis of recommendation made by the Selection Committee. The selection, in our opinion is not an empty ritual or formality to be gone into. Selection for personal promotion involves objective assessment to be made by the Selection Committee of ''satisfactory work'' of the concerned teacher on the basis of selfassessment report which is required to be submitted in the proforma given in Appendix ''C''. Mere fact that a teacher is eligible and possessed of the requisite qualification for the post of Reader or Professor, as the case may be, is not enough to grant personal promotion unless the Selection Committee, on the basis of appraisal of ''satisfactory work'' of the teacher concerned, finds him ''suitable'' and recommends to the Executive Council for grant of personal promotion. In case the work of a teacher who is eligible and possessed of the requisite qualifications for grant of personal promotion, is not found by the Selection Committee to be satisfactory he may be denied personal promotion on the ground of unsuitability.

That apart, personal promotion from the post of Lecturer to the post of Reader and from the post of Reader to the post of Professor is admissible only to those eligible and qualified teachers who opt for personal promotion is accordance with paragraph 9 of the Government Order dated September 10,1987. The dividend of personal promotion will not be forthcoming to teachers who are covered by Career Advancement Scheme. It would be evident both from Clause (9) of Statute 11.12B and para 7 of the Government order dated September 27, 1994 that in case a teacher of University is not found suitable for personal promotion, he may offer himself again for such promotion after two years and upon such offer being given, the case of such teacher "shall be considered by the Selection Committee again alongwith the teachers of the University who have since become eligible". Such promotion, it has been expressly provided in paragraph 6 of the Government Order dated September 27, 1994, and Clause (7) of Statute 1112B of the Statute, shall have effect from the date of taking over the charge of the post concerned. The expression taking over charge of the said post refers to taking over charge after grant of personal promotion on the basis of "such recommendation". The term "such recommendation" means recommendation by the Selection Committee as to the concerned teacher being suitable for grant of personal promotion to the post of Reader or Professor, as the case may be.

The submission made by Sri V.B. Singh, Senior Advocate that a teacher on being found ''suitable'' for grant of personal promotion under Section 31A of the as the same appears to have been decided without considering the effect of Clause (7) of Statute 11.12B and para 6 of the Government Order dated September 24,1994. The decision appears to be per incuriam and is liable to be ignored in view of the law laid down by the apex Court in State of UP and another v. Synthetics and Chemicals Limited and another, 1995 (II) AWC 832, wherein relying on Lancaster Motor Company (London) Ltd v. Bremith Ltd., (1991) 4 SCC139, it has been clearly expounded that a decision rendered "without reference to the crucial words of the rule and without any citation of the authority" is of no binding efficacy. The relevant provisions particularly Clauses (7), (9) and (10) of Statute 11.12B have not been taken into reckoning which in no delphic terms, point to the fact that personal promotion under Section 31A of the Act is not like automation to a teacher becoming eligible for personal promotion and rather lay down that personal promotion shall have effect from the date of taking over charge. Assessment of work is required to be made by the Selection Committee and thereafter positive order granting personal promotion is required to be passed by the Executive Council. In view of the plain language employed in Clause (7) of Statute 11.12B, the view that personal promotion shall take effect not from the date of taking over charge of the post but from the date on which the teacher concerned become eligible for consideration for grant of personal promotion, does not stand to reason. The contention of Sri VB. Singh that personal promotion under Section 31A shall take effect from the date of the teacher becoming eligible is against all known principles of service jurisprudence.

Before parting, we may, however, observe that it would be open to the petitioners to claim protection of the salaries and emoluments paid to them as Professors on the basis of illegal promotions granted to them. In case petitioners move any such application claiming protection of the salaries and emoluments already paid to them for the post of Professors, it would be open to the respondents to take appropriate decision in that regard in accordance with law without being prejudiced by any observation made in this judgment.

In the result, the writ petition fails and is dismissed in limine subject to the observations aforestated.