Delhi Technological University v. Sangita Kansal

judgment Delivered On:9^^ August. 2010 + W.P.(C) 851/2010 & CM No.6329/2010 DELHI TECHNOLOGICAL UNIVERSITY ..... Petitioner Through: Ms Avnish Ahlawat, Advocate. Versus MRS ARCHNA RANI Respondent Through: Mr. Arun Bhardwaj Advocate. W.P.(C) 892/2010 & CM No.6328/2010 DELHI TECHNOLOGICAL UNIVERSITY Petitioner Through: Ms Avnish Ahlawat, Advocate Versus . SANGITA KANSAL Respondent Through: Mr.Arun Bhardwaj,Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG

¶1Whether the Reporters of local papers may be allowed to see the judgment?

¶2To be referred to Reporter or not?

¶3Whether the judgment should be reported in the Digest? PRADEEP NANDRAIOG. I.

¶1present decision disposes of above captioned writ petitions as also CM No.6329/2010 filed in W.P.(C) No.851/2010 CM No.6328/2010 filed in W.P.(C) No.892/2010.

¶2The two civil miscellaneous applications pray that the Joint Registrar (Administration) Cum Administrative Officer of first petitioner be proceeded against having ' W.P.(C) NOS.851/2010&892/2010 Page1 of 13 Q Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. committed perjury. Tine averments on wiiich it is stated tliat action for perjury be initiated is that he falsely filed an affidavit disclosing that at the selection committee meeting held on

10.9.2003 candidature respondents other persons was considered as per applicable guidelines notified in the year 2003, whereas fact was that applied the new guidelines notified on

7.3.2008.

¶3We shall be dealing with the two applications at the end of our decision and before that we shall be dealing with the main writ petitions..

¶4Archana Rani, respondent of W.P.(C) No.851/2010 had taught at Mahila Degree College from

27.3.1996 till 31.7.2000. Sangita Kansal, the respondent of W.P.(C) No.892/2010 had taught at Vaish Girls College from

18.12.1995 to 6.6.2000. Both of them joined as Lecturer in chemistry and Mathematics under the first petitioner pursuant to letters of appointment offered to them. The dates are not very clear, but it appears that Archana Rani joined the first petitioner on 1.8.2000 and Sangita Kansal joined on 6.6.2000.

¶5Both of them are Ph.D. in their respective subjects.

¶6On 31.7.2001 AlCTE issued guidelines notifying a Career Advancement Scheme (hereinafter referred to as CAS) laying down guidelines and the procedure to be followed promotion in the teaching cadre in the degree level technical institutes in India.

¶7Relevant would it be to note that the posts in the teaching cadre in technical institutes imparting degrees is the post of Lecturer at the lowest rung followed by the post of W.P.(C)Nos.851/2010& 892/2010 Page2 ofl3 Lecturer (Senior Scale), Lecturer (Selection Grade), Assistant Professor and Professor in thei preceding order.

¶8claim respondents in two writ petitions pertain to their entitlement promotion as Assistant Professors hence we note only relevant extract of the notification dated 31.7.2001 reads as under:- "The Promotions under Career Advancement Scheme will follow guidelines, given below. All promotions in career advancement will be on 'in-situe' basis and therefore the work allocation (teaching load, etc.) will remain.the same after promotion. .

1.1.0 General

1.1.0 Minimum length of service for eligibility to move into the grade of Lecturer (Senior Scale) would be four years for those with Ph.D., five years for those with M.Phil., M.Tech and six years for other at the level of Lecturer, and for eligibility to move into the Grade of Lecturer (Selection Grade)/Asstt. Professor, minimum length of service as Lecturer (Senior Scale) shall be uniformly five years.

1.1.1 For movement into grades of Asstt. Professor and above, the minimum eligibility criterion would be Ph.D. Those without Ph.D. can go up to the level of Lecturer (Selection Grade). l.r.2 An Asstt. Professor with a minimum of eight years of service in that grade will be eligible to be considered for appointment as a Professor.

1.1.3 Committees Career Advancement shall be the. same as those for Direct Recruitment for each category.

1.2.0 Lecturer (Senior Scale)

1.3.0 Lecturer (Selection Grade)

1.4.0 Assistant Professor W.P.(C) Nos.851/2010 & 892/2010 ,

1.4.1. A Lecturer in tine Senior Scale will be eligible for promotion to the post of Asstt. Professor in she/he has: / , ' ' • ,

(i) Completed 5 years of service iri the Senior Scale.

(ii) Obtained a Ph.D. degree or has equivalent published work.

(iii) Made some mark in the areas of scholarship research as evidence e.g. self-assessment, reports of referees, quality of publications, contribution to education innovation, design of new courses curricula and extension activities.

(iv) After placement in the Senior Scale participated in I-winter/summer schools (short-term courses) of total duration of 4 weeks, or engaged in other appropriate continuing education programmes of comparable quality as may be specified/approved by the All India Council for Technical Education (AlCTE).

(v) Possesses consistently good performances appraisal reports. ,,

1.4.2 Promotion to the Post of Asstt. Professor will be through a process of selection by a Selection to be set up under Statutes/Ordinances of concerned Institute/University or other, similar Committees set up by the appointing authorities."

¶9A comment may be penned qua dated

31.7.2001. To move into grade of Assistant Professor, Lecturers having Ph.D. acquired eligibility after rendering 5 years' service in the post of Lecturer, but whether or not past service rendered before joining as Lecturer in a degree college under the first petitioner has been not made clear. Secondly, to move to the grade of Assistant Professor the candidate does not have an automatic right of being so placed. The candidate has to be evaluated through a process of selection by a duly constituted which has to evaluate the candidature on three being W.P.(C) Nos.851/2010 &892/2010 V ones specified in clause

(iii), (iv) and (v) of Para 1.4.1 of the notification. Suffice would it be to state the evaluation is to determine, vide clause

(iii) research work with reference to quality of publication, contribution to education innovation and design of new courses and curricula; vide clause

(iv) to evaluate engagement by the candidate in appropriate continuing education programmes of quality; lastly vide clause (v) consistent good performance appraisal report.

¶10On

5.9.2003 AlCTE issued a relevant part whereof which reads as under:- "Previous service, without any break as a lecturer of equivalent, in a university, college national laboratory, or other scientific organization, e.g. CSIR, ICAR, DRDO, UGC, iCSSR, ICHR and as a UGC Research Scientist, should be counted for placement of lecturer in Senior Scale/Selection Grade provided that:

8.1.0 The post was In an equivalent grade/scale of pay as the post of a lecturer.

8.2.0 qualifications post were not lower than the qualifications prescribed by the UGC for the post of lecturer,

8.3..0 candidates who apply direct recruitment should apply through proper channels;

8.4.0 concerned Lecturers possessed minimum qualifications prescribed by the UGC for . appointment as lecturers;

8.5.0 The post was filled in accordance with the prescribed selection procedure as laid down by the university/State Government/central governments/institution's regulations.

8.6.0 appointment was no ad-hoc or in a leave vacancy of less than one year duration. Ad hoc service of more than one year duration can be counted provided-W.P.(C) NOS.851/2010& 892/2010

(a) The ad hoc service was of more than one year duration.

(b) incumbent was appointed on recommendation of duly constituted

(c) The incumbent was selected to the permanent post in continuation to the ad hoc service, without any break."

¶11Needless to state the mandate requires previous service rendered before joining an institute imparting technical education for graduation degree to be reckoned for purposes of computing qualifying service as a Lecturer i.e. 5 years' service.

¶12On

24.3.2004 petitioners invited application from the eligible candidates who desired their candidature to be considered in sjtue advancement of career. respondent No.l of both writ petitions submitted the. application on

8.4.2004 and ,6.4.2004 respectively. Self assessment reports required as per the rules were submitted by them.

¶13Needless to state, granting benefit of past service rendered by the said respondents before they joined service under the petitioner as Lecturer, holding a Ph.D. degree, respondents, were entitled to be considered under the career advancement scheme to be designated as Assistant Professors. Further, as per the Career Advancement Scheme notified on

31.7.2001 a had to be constituted to evaluate them under the parameters specified under clause (iii), (iv) and (v) of para 1.4.1 of the scheme.

¶14which met in month of July/August 2005 did not evaluate respondents with W.P.(C) Nos.851/2010 & 892/2010 1-1 reference to parameters specified under clause

(iii), (iv) and

(v) of para 1.4.1 of the scheme. Why this was not done has not been brought out in the pleadings of the parties.

¶15On 6.2.2006, once again applications were invited from the eligible candidates to be considered under the Career Advancement Scheme dated 31.7.2001. Respondents applied with a specific request that they became entitled upgradation to the post of Assistant Professor in the month, of March 2005 and December 2004 respectively and prayed that their candidature be considered with retrospective effect.

¶16which met on

13.12.2007 was a Screening and not a Selection i.e. the only scrutinized applications to determine whether they were in order and whether the applicants were entitled to be considered for career advancement. Though not expressly stated, but probably reason there were various parameters which required to be considered determining suitability as per the notification dated 31.7.2001, Screening recommended, obviously purposes of bringing transparency, to have an objective on which candidates could be graded. recommended that should consist of 5 Members and further weightage to the relevant be as unden-ACR Research & Development Consultancy Research order/conference Institute Development Allied works 50% 15% 20% 15% W.P.(C) Nos.851/2010 & 892/2010

¶17competent authority accepted weighted proposed by the Committee and notified the same on

7.3.2008. The order notifying the same reads as under:- "ORDER "The Hon'ble Lt. Governor, National Capital Territory of Delhi is pleased to constitute following to consider cases of lecturer (Senior Scale) for placement in the grade of lecturer (Selection Grade/Assistant Professor) under Carrier Advancement Scheme of AICTE in respect of Degree level colleges under Department of Training & Technical Education, Delhi.

¶1Secretary

(TTE)

¶2Principal concerned

¶3Subject experts (maximum Three as per Requirement of the disciplines) Chairnhan Member . Member The following shall be adopted placement of Lecturer (Senior Scale) in the grade of lecturer (Selection Grade/Assistant Professor) by giving the weightage to various parameters. ACR •Research & Development' Consultancy Research order/conference Institute Development Allied works 50% 15% 20% 15% Sd/-xxx , (MUKESH PRASAD) JOINT SECRETARY(T -E)"

¶18Unfortunately, the Selection required to be constituted was never constituted. The respondents two writ petitions sent various representations requesting that their candidature be considered under Career Advancement Scheme to upgrade them as Assistant Professors. Yet in spite thereof. was not constituted till the year W.P.(C) Nos.851/2010&892/2010 Page8 of 13 2009 compelling said respondents to file two original-applications registered as OA No.316/2009 OA No.317/2009 praying to the Central Administrative Tribunal that they be designated as Assistant Professor with effect from

27.3.2005 (Archana Rani) and 18.12.2004 (Sangita Kansal).

¶19In brief, they pleaded that the dated

31.7.2001 envisaged in situe upgradation and that they were fully eligible on

27.3.2005 (Archana Rani)

18.12.2004 (Sangita Kansal) to be upgraded as Assistant Professor as both of them had a Ph.D. Degree and reckoning their past service as per the notification dated 5.9.2003 had completed 5 years' service as Lecturer on the said respective dates. They pleaded that the notification dated 7.3.2008 was not applicable to them and that their candidature had to be considered with reference to the notification dated 31.7.2001.

¶20The case of the petitioner in response before Tribunal was that the entitlement of the respondents had to be in terms of a dated

11.12.2003, which we note makes no difference to the entitlement of the respondents career advancement to post of Assistant Professor. Without explaining as to why candidature two respondents was not considered, the reply to the two original applications ended abruptly.

¶21Needless to state none could deny to two respondents entitlement to be considered being upgraded as Assistant Professors from the date they became eligible under the Career Advancement Scheme notified on

31.7.2001 or the notification dated 11.12.2003.

¶22But, what arose consideration before Tribunal was:

(a) whether the respondents had an automatic W.P.(C) Nos.851/2010 &892/2010 right of upgradation or. whether a Selection Comnnittee had to consider their applications;

(b) whether dated

7.3.2008 laid down a new vis-a-vis dated

31.7.2001 could it be said that dated

7.3.2008 could not be applicable to the respondents whose candidature had to be considered as of December 2004 and March 2005. .23. Unfortunately, the Tribunal has neither posed these questions and thus obviously has not answered them.

¶24In a cryptic order spanning 6 paragraphs, after noting the relevant facts in the first 4 paragraphs, has concluded the issue in para 5 and 6 as under:- "5. Pursuant to notice. issued by this Tribunal, respondents have entered appearance and filed their reply. Counsel for respondents in view of the admitted , position of facts is unable to oppose the case of the applicants on any ground whatsoever. The applicants being eligible on all counts, as rightly urged by the counsel for applicants appear to have been wrongly ignored for the post of Assistant Professor. Inasmuch as applicants meet eligibility criteria, not giving them requisite designation and rather deferring their case is totally incorrect.

¶6There is no need now to direct the respondents to consider the case of the applicants for the post of Assistant Professor as they have already become entitled in situe promotion. Whereas Sangita Kansal is entitled in situe promotion w.e.f.

27.03.2005, the other applicant is entitled for such promotion w.e.f.

18.12.2004, when they completed five years service on respective dates. Respondents shall pass the required orders for in situe promotion as expeditiously as possible and preferably within a period of three weeks from today. There will be no order as to costs. Any consequential benefit the applicants may be entitled to in consequence of in situe promotion from

27.03.2005

18.12.2004 W.P.(C) Nos.851/2010&892/2010 . Page10 of 13 n respectively, same shall also be given to applicants."

¶25We are baffled at what has been done by the Tribunal. A reflection on para 5 shows that probable reason was a sub-standard representation of counsel before the Tribunal.

¶26A reflection on para 6 shows that the Tribunal has been either misled or has misled itself as to what is the meaning of 'in situe promotion', the expression used in the dated

31.7.2001. The notification states: "all the promotions in career advancement will be on 'in situe' basis".

¶27Career advancement on 'in situe' basis would mean that a person holding a post in a particular institution would be upgraded to the higher post in his institution i.e. in situe and not to any other. It does not mean that whosoever js in place (in situe) would be upgraded. To read the notification dated

31.7.2001 as read by the Tribunal would render otiose clauses

(iii)

(iv)

(v) of para

1.4.1 of dated

31.7.2001, which as noted in para above requires candidates to be evaluated on the criteria, vide clause

(ill) research work with reference to quality of publication, contribution to education innovation design of new courses curricula; vide clause

(iv) to evaluate y engagement by candidate in appropriate continuing education programmes of quality; lastly vide clause

(v) consistent good performance appraisal report. We note that the same is the purport implication dated

11.12.2003 relied upon by the, petitioner before Tribunal. W.P.(C) NOS.851/2010& 892/2010 •s, )•••

¶28Thus, the Tribunal is wholly unjustified in issuing the direction as per para of impugned order dated

3.11.2009.

¶29• As regards the controversy whether the notification dated 7.3.2008 is retrospective in operation or not, as is to be noted from our discussion above, the criteria laid down evaluation vide dated

31.7.2001 were fairly subjective and to bring objectivity the Selection. would have been required, to give objectivity, lay down a a fair selection. It is settled law that every is empowered to lay down an objective to regulate selection procedure. Rather than having to bring objectivity' by apportioning the weightage to the criteria listed under the dated

31.7.2001, what the petitioner's did was to apportion weightage vide dated

7.3.2008, which obviously has to be treated as a clarificatory notification. It is settled law a clarificatory is always treated as retrospective. In any case, even if it is to be held that the dated

7.3.2008 cannot be applied, only direction which could be issued would be to direct that a be constituted to consider candidature of the two respondents in terms of the notification dated 31.7.2001, leaving it open to the Selection Committee to devise a procedure for awarding weightage to the various for evaluation specified in terms dated 31.7.2001.

¶30two writ petitions are accordingly allowed. Impugned order dated 3.11.2009 is set aside. OA No.316/2009 and OA No.317/2009 are disposed of with a direction to the petitioner to convene within 2 months from today a Selection W.P.(C) NOS.851/2010& 892/2010 7^ > o to consider tlie candidature of tine respondents under the dated 31,7.2001 by applying weighted as per the notification dated

7.3.2008; candidature of the respondents would be considered as of the date they became eligible under Career Advancement Scheme to become Assistant Professors. Further action would be as per the recommendations of the Selection Committee.

¶31As regards the two civil miscellaneous applications, suffice would it be to state that in view of the facts noted hereinabove our opinion that dated

7.3.2008 is merely clarificatory we find that no perjury has been committed and hence we dismiss CM No.6329/2010 CM No.6328/2010. . '

¶32No costs. (PRADEEP NANDRAJOG) JUDGE (MOOL CHAND GARG) JUDGE AUGUST 09, 2010 mm W.P.(C) Nos.851/2010 & 892/2010

* IN THE HIGH COURT OF DELHI AT NEW DELHI % ludament Reserved On:3'^^ August, 2010