S.K. Chandoke vs School of Planning and Architecture and Another

Valmiki J Mehta, J.—This writ petition is filed by the petitioner one Sh. S.K. Chandoke, an Assistant Professor of Sociology in the respondent no. 1-School of Planning and Architecture-employer. Petitioner was originally appointed as a Lecturer in Socio-Economics with the respondent no. 1 on 1.11.1965. Following two relief''s are pressed before me in terms of the prayer clauses in the writ petition:-

(i) First is for grant to the petitioner of second promotion under the Merit Promotion Scheme.

(ii) The second relief is the claim for conducting of recruitment to the post of Professor of Socio-Economics by holding the appointment of Mr. A.K. Maitra-respondent no. 2 in 1.8.1981 as illegal. With respect to the second relief claimed I may note that the writ petition is filed in the year 1997 for challenging an act of respondent No. 1 of 1981 i.e. of about 17 years earlier.

So far as the first relief claimed for second promotion under the Merit Promotion Scheme of the respondent no. 1 is concerned, the issue arises with respect to applicability and the language of the Merit Promotion Scheme of December, 1984 of the respondent no. 1. Whereas the petitioner claims that more than one merit promotion can be granted under the scheme after every 8 years, on the other hand the respondent no. 1 contends that only one promotion can be claimed and granted under the Merit Promotion Scheme and in fact therefore not a single other Lecturer or Assistant Professor or Professor has got a second promotion under the Merit Promotion Scheme.

On behalf of the petitioner, reliance is essentially placed upon Rule 5.1 of the Merit Promotion Rules and which reads as under:-

ELIGIBILITY

5.1. A member of the faculty whose contribution in teaching, research and development of the School and its programmes is such as to merit recognition may be considered for merit promotion in the first instance after completing 8 years of service in the respective cadre in the school from where promotion is to be made.

Emphasis is placed on behalf of the petitioner on the expression "in the first instance" to argue that this expression shows that there can be more than one merit promotion under the Merit Promotion Scheme. Reliance is also placed upon a letter of the University Grants Commission (UGC) dated 18.3.1999 which states that two promotions can be granted under the Merit Promotion Scheme.

I am unable to agree with the arguments as urged on behalf of the petitioner that the petitioner is entitled to more than one promotion under the Merit Promotion Scheme/Rules of the respondent no. 1. This I say so because when under a Merit Promotion Scheme or an Assured Promotion Scheme more than one promotion is granted or a higher pay-scale is granted more than once, then, in such a case, there is a clear cut language of grant of Merit Promotion/Assured Career Promotion/Higher Pay-Scale of the higher post after every fixed number of years whereupon there is entitlement to automatic higher scale of the higher post. The language of Rule 5.1 relied upon by the petitioner only shows that the expression "in the first instance" is relatable to a first application made for merit promotion and not for such expression indicating as if second promotion can only be claimed which is because grant of promotion under the Scheme is not automatic but on compliance of certain requirements which are examined by a Selection Committee. This becomes clear from the immediately succeeding Rule 5.2 which states that if a candidate is not successful on the first occasion to get the merit promotion, as he fails in the consideration, then he can apply for review after a lapse of one year i.e. a review for grant of merit promotion. The said Rule 5.2 reads as under:-

5.2. A member of faculty who has been considered and not selected for merit promotion in the initial presentation may apply again for review under the Merit Promotion Scheme after a lapse of one year.

Therefore, it is clear that there is no categorical language in the Merit Promotion Rules that after each period of 8 years there is an entitlement to promotion to a supernumerary post i.e. of a higher pay-scale of a higher post without actual promotion. It is relevant to note that the respondent no. 1 on affidavit has stated that no teaching staff of the respondent no. 1 has ever been granted two merit promotions, and therefore, once by a reasonable interpretation of the Merit Promotion Rules when no employee has ever been granted two merit promotions by the respondents, I refuse to interpret the Merit Promotion Rules as is sought to be done by the petitioner so as to grant two promotions. A Court will only interfere if there is a perverse interpretation of the rules, and in the facts of the present case, I do not find any perversity in the interpretation of the rules by the respondent no. 1 that only one merit promotion can be granted. Reliance placed upon by the petitioner on the letter of UGC dated 18.3.1999 which talks of granting of two promotions is also misplaced because the letter is of the year 1999 whereas we are concerned for the second merit promotion applicable much earlier as in the year 1991. As in 1991, the relevant promotion rules of the respondent no. 1 did not entitle two promotions. I am in fact informed by the respondent no. 1 that the Merit Promotion Scheme/Rules of the respondent no. 1 were around the year 1998 altered to Career Advancement Scheme i.e. just a year or so before UGC''s letter dated 18.3.1999. The letter of UGC therefore would have to be read with reference to the scheme as applicable in March, 1999 and which was the Career Advancement Scheme of the respondent no. 1. I would also like to state that I would have considered the claim of the petitioner no. 1 to second promotion provided that the petitioner had filed a Model Merit Promotion Scheme of the UGC, and which was to be adopted by the respondent no. 1, and which may have provided a different language than the Merit Promotion Rules of the respondent no. 1 and which does not by any categorical language requires promotion scale after expiry of every period of eight years, but no such Model Rules of UGC have been filed. Petitioner therefore, cannot derive any benefit from the letter of the UGC dated 18.3.1999.

So far as the relief claimed by the petitioner for the respondent no. 1 to conduct process for the appointment to the post of Professor of Socio-Economics is concerned, I find that relief claimed is hopelessly barred by delay and laches. The case set up by the petitioner is that the petitioner was actually entitled to the post of Professor of Socio Economics which was wrongly granted to the respondent no. 2 in the year 1981, and if that be so, cause of action accrued to the petitioner to approach the Court immediately thereafter, when Mr. A.K. Maitra-respondent no. 2 was wrongly appointed. For a claim of entitlement to a Professor of Socio-Economics in 1981, the writ petition cannot be entertained after about 17 years in 1997. The respondent no. 2-Mr. A.K. Maitra may have been wrongly appointed, but, that wrongful appointment in 1981 had to be challenged in a reasonable period thereafter, and the same cannot be done surely in the year 1997.

Another argument urged on behalf of the petitioner for being appointed as a Professor of Sociology was that an advertisement was issued by the respondent no. 1 in the year 1982 in a newspaper for this post, but this argument cannot help the petitioner because the respondent no. 1 informed the petitioner way back vide letter dated 9.8.1989 that there was no post of the Professor of Sociology sanctioned by the respondent no. 1, and therefore, the advertisement had been issued under mistake, and was thus withdrawn. Once there is no post of the Professor of Sociology of the respondent no. 1, I do not think that any claim can be made by the petitioner for appointment to the post of Professor of Sociology.

Finally, it was argued on behalf of the petitioner that petitioner should have been appointed to the post of a Professor of Socio-Economics as a Professor of Sociology is the same as a Professor of Socio-Economics and the post of Professor of Socio-Economics is in fact provided in the sanctioned posts of the respondent no. 1. It is argued that the issue of Professor of Sociology and a Professor of Socio-Economics is merely a difference of nomenclature and the post of a Professor of Sociology is the same as the post of professor of Socio-Economics. Even this argument urged on behalf of the petitioner, I am unable to agree to inasmuch as even on a first reading there is a difference between Sociology and Socio-Economics. It is not necessary that Sociology as a subject would have identical subject matters as Socio-Economics. Be that as it may, and taking the fact that there is no difference in the two, however, it is not disputed before me that appointment to the post of Professor of Socio-Economics is by selection and it is not by automatic promotion on completion of a particular period of years. If that be so, and considering that petitioner has already retired in the year 1997, theoretically, at this stage, I cannot direct that a recruitment process be undertaken for appointment to the post of Professor of Socio-Economics. I am also not able to do so because I have not found categorical averments containing facts/cause of action as to how petitioner meets qualifications for being appointed to the post of Professor of Socio-Economics, inasmuch as, no recruitment rules showing qualifications to the post of Professor of Socio-Economics are pleaded in the writ petition and documents filed without written pleadings and without laying down the foundation/cause of action the claim cannot be looked into because no opportunity has been given to the other side to meet the factual aspects. In any case, I have already stated above, appointment is by selection to the post of Professor of Socio-Economics and today we are in the year 2013, and when the petitioner has already retired in 1997 relief cannot be claimed on the alleged ground of illegal appointment of the respondent no. 2/Sh. A.K. Maitra way back in the year 1981. In view of the above, there is no merit in the petition, which is accordingly dismissed, leaving the parties to bear their own costs.