M P JOSHI Vs. UNIVERSITY OF KUMAON NAINITAL

JUDGEMENT

(1.) This is an application seeking review/recall of our judgment dated 27th September, 2000 whereby the writ peti tion has been dismissed subject to certain observations made therein. In the writ petition two questions arose and were raised for consideration : first, whether double promotions given to petitioners in their respective disciplines under Section 31-A of the U. P. State Universities Act, 1973 (hereinafter referred to as the Act of 1973) read with Statute 11. 12 B as it then stood was legally permissible and second, whether personal promotion as visualised by Section 31-A of the Act af 1973 would take the effect from the date of taking over the charge of the post concerned or w. e. f. the date of eligibility. 2, As regards the first point we have held in our judgment under review that the language employed in clause (6) of Statute 11. 12 B of the relevant Statute as it then stood did not comprehend double promo tion. Sri L. P. Nathani, Senior Advocate engaged by the petitioners to argue the Review Petition besides Sri Vijay Bahadur Singh Senior Advocate tried to urge that Statute 11. 12 B (6) as quoted in the judg ment under review was subsequently amended under Section 50 of the U. P. State Universities Act, 1973 as would be evident from the registered letter No. 4681/g. S. , Lucknow dated August 14, 1995 (Annexure No. 4 to the writ petition) but the amended provision was not taken notice of by the Court. The amendment in fact was brought about consequent upon Government order No. 5714/15-11-7- 14 (5)/87 dated September 10, 1987 whereby the revised scale of. pay of teachers of Universities and affiliated col leges was enforced, subject to conditions stipulated therein, w. e. f. 1-1-1986 on con sideration of the report of a Committee constituted by University Grants Commis sion under the Chairmanship of Sri R. C. Mehrotra, Clauses (6) and (7) of Statute 11. 12 B as it stand amended read as under: " (6) The benefit of Personal promotion shall be admissible only to those teachers of the University, who have exercised options for per sonal promotion within the time stipulated in Government Order No. 5714/15-11-87-14 (5)/87, dated September 10,1987. (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 on the said post. " 3. The Government order dated Sep tember 10, 1987 in fact introduced a scheme called Career Advancement Scheme as visualised in Paras 11 to 17 of the Government order aforestated. The scheme visualised in the Government order dated 10-9-1987 has been made ap plicable to all teachers in State Univer sities and Colleges affiliated to the State Universities under the U. P. State Univer sities Act, 1973 excepting those who specifically exercise an option in writing for personal promotion under the old scheme within stipulated time as provided in para 19 of Annexure II to the Govern ment order dated September 10,1987. Ac cording to Government order aforestated every Lecturer in University or af filiated/associated colleges became eligible for placement in senior scale of Rs. 3000-5000 on fulfilment of conditions stipulated therein. Para 18 of the Govern ment order visualised that the scheme of Carrcer Advancement mentioned in paras 11 to 17 will apply to all the teachers ap pointed on or after the date of implemen tation of this scheme as well as to all exist ing incumbents except those who specifi cally opt in favour of the existing personal promotion scheme/selection grade scheme introduced in the Universities and the colleges respectively. Para 19 clearly visualised that the existing teachers in Universities and Colleges would have an option to an continued to be governed by the Personal Promotion Scheme aforesaid provided that they exercise that option in writing within 90 days of the date of issue of this Government order. The Government order September 10,1987 visualised altogether a different personal promo tion/selection grade scheme under which the personal promotion from the post of Lecturer to the post of Reader is visualised in the scale of Rs. 3000-5000 and from the post of Reader to the post of Professor in the scale of Rs. 4500-5700. Paras 18 and 19 of the Government order dated September 10, 1937 being relevant to the point in issued is quoted as under: "18. The scheme of career advancement mentioned in paras 1. 1 to 17 above will apply to all teachers appointed on or after the date of implementation of this scheme. It will also apply to all existing incumbents except those who specifically out in favour of the existing Personal Promotion Scheme/selection Grade Scheme in troduced in the Universities and the Colleges respectively. 19. The existing teachers in Universities and Colleges will have an option to continue to be governed by the provisions of the aforesaid Personal Promotion/selection Graie Schemes provided that they exercise that option in writing within 90 days of the date of issue of this Govern ment order. They will also be entitled to the designations envisaged for teachers in those scheme, but the scales of pay will be as follows: (i) Lecturer Rs. 2200-4000 (ii) Reader/lecturer (Selection Grade) Rs. 3000-5000 (iii) Professor/principal (Selection Grade) 4500-5700. " 4. In the instant case the petitioners were promoted from the post of Lecturer to the post of Reader under the old Per sonal Promotion Scheme and concededly no option was given within 90 days from the date of the Government order and in fact they could not have given that option because they were already given designa tion as well as full scale of Reader under the old scheme of personal promotion whereas personal promotion under the new schemes carries a lower scale of pay. 5. The said Government order dated September 10, 1987 was amended vide Government Order No. 91 G. I. /15-11-88-14 (5)/87 Shiksha (II) Anubhag Lucknow dated January 7,1989. In fact Annexures I, II and III of the Government order date'1 September 10, 1987 were substituted by Annexures I, II and III to the Government order dated January 7,1989. Paras 18 find 19 of Annexure II to the Government order dated 7-1-1989 are quoted below: "18. (1) Lecturers placed in the old Selec tion Grade of Rs. 1200/1900 in the Universities or in Affiliated- Associated Colleges on or before 17-6-1987 shall be placed at appropriate stage in the revised Selection Grade of Rs. 3700-5700 in accordance with the pay fixation formula under this scheme. (2) The Readers and Professors in the Universities who were promoted as such on or before 17-6-87 under personal promotion scheme, shall be placed at appropriate stage in the revised Scale of 3700/5700 or 4500-7300, as the case may be in accordance with the pay fixation formula under this scheme. 19. Those teachers in Universities and Colleges will continue to be governed by the provisions of the aforesaid Personal Promo tion/selection Grade scheme who have already exercised that option in writing within 90 days of the date of issue of Government order dated 10 September, 1987. Such teachers will also be entitled to the designations envisaged for various categories of teachers in these schemes but the scales of pay will be as follows: (i) Lecturer Rs. 2,200-4,000 (ii) Reader/lecturer (Selection Grade) Rs. 3,000-5,000 (iii) Professor/principal (Selection Grade)" Rs. 4,500-5,700 6. The new scale of pay as enforced w. e. f. January 1, 1986 was subject to the conditions stipulated in Annexure No. II to the Government order dated Septem ber 10, 1987. Existing scales of pay and revised scales of pay as indicated in An nexure I to the Government order dated 10-9-1987 in so far as teachers of Univer sities and affiliated colleges are concerned were as under: SCALES OF PAy UNIVERSITy Designation Existing scale of pays Revised scale of pay Lecturer -1600 00-75-2800-100-4000 Lecturer (Sr. Scale) Not existing 3000-100-3500-125-5000 Lecturer (Selection Grade) 0-1900 00-125-4700-150-5300 Reader 1200-1900 0-125-4700-150-5300 Reader (Sr. Scale) Not Existing 0-150-5700 Professor 0-2500 0-150-5700-200-7300 Professor of Eminence 3000 ( fixed) 0 ( fixed) COLLEGE Lecturer -1600 0-75-2800-100-4000 Lecturer (Sr. Scale) Not existing 0-125-3500 Lecturer (Selection Grade) 1200-1900 0-125-4700-150-5300 Principal (i) 1200-1900 0-125-4700-150-5300 (ii) 1500-2500 00-150-5700-200-7300 Tutors/demonstrators in Universities and Colleges, (existing incumbents only ). 7. Scales of pay of the teachers of Universities and teachers of colleges as amended by the Annexure I to the Government order dated 7-1-1989 are as under:- SCALES OF PAy Designation Existing Scale of pay Revised Scales Lecturer -1600 0-75-2800-100-4000 Lecturer (Senior Scale) Not Existing 0-100-3500-125-5000 Lecturer 0-1900 0-125-4950-150-5700 (Selection Grade) Reader Professor 1500-2500 0-150-5700-200-7300 Principals of Colleges (i) 1200-1900 0-125-4950-150-5700 (ii) 1600-2500 00-150-5700-200-7300 Vice Chancel lors 0 (FIXED) 0-100-7600 Tutors/demons trators 500-900 -60-2700- EB-75-3000 Existing Incumbents only 8. It would be evident from the above quoted Government order dated 7-1-1989 that Readers promoted as such on or before 17-6- 1987 were placed at apropriate stage in the revised scale of Rs. 700-5700 admissible to Reader. In fact there exists no difference between the pay of a Lecturer in selection grade and that of a Reader. Both carried the pay scale of Rs. 1200-1900 which stood revised as Rs. 3,700. 5700. The petitioners who were promoted from the post of Lecturer to the post of Reader under the old personal promotion scheme took charge of the posts of Reader in their respective dis ciplines on 16-5- 1987, 9-1-1986, 16-5-1987, 16-5-1987, 16-5-1987 and 4-9-1986 respectively as stated in para 7 of the writ petition. They were not entitled to further promotion to the post of Professor as per clause (6) of the Statute 11-12-B yet they were illegally promoted to the posts of Professor in the respective disciplines on which posts they are said to have joined on 9-12-1995. The double promotion as visualised by Annexure No. II to the Government order dated September 10, 1987 was not available to the petitioners. In the circumstances we find no substance in the first submission made by the learned Counsel for the petitioners. 9. In so far as the second submission in concerned, suffice it to say that our view that promotion under the personal promotion scheme would be effective from the date of taking over the charge is based on the clear and unambiguous lan guage used in the Statute 11. 12-B (6) itself. No amendment has been made in the Statutes in so far as this aspect of the matter is concerned. Even the Govern ment orders dated 7-1-1989 and 24-1-1994 as well as clause (7) of amended Statute 11. 12-B clearly provide that such promo tion shall take effect from the date of taking over of the charge of the post con cerned. The decision in Dr. Bal Krishna Agarwal v. State of Uttar Pradesh and others, JT 1995 (1) SC 471, relied upon by Sri L. P. Nathani appearing for the petitioner does not. help the applicants inasmuch as the questions involved in the present case were not up for consideration in Dr. B. K. Agarwal's case (supra ). The apex Court in para 14 of the report held that the relevant Statutes were amended by notification dated February 21, 1985 thereby providing that in the same cadre, inter se seniority of teachers appointed by Personal Promotion or by direct recruit ment, shall be determined according to length of continuous service in a substan tive capacity in such cadre. The appellant, Dr. B. K. Agarwal was held senior to respondents therein since he was promoted to the post of Professor on November 9, 1984 whereas personal promotions of Respondent Nos. 4 and 5 therein were treated to be valid only w. e. f. February 21, 1985. The question as to whether personal promotion will become effective from the date of eligibility or from the date of taking over the charge was not considered therein nor was the ques tion regarding double promotion raised and decided by the apex Court in the case of Dr. B. K. Agarwal. The said decision in our opinion is of no avail to the petitioners. 10. The review petition fails and is accordingly dismissed being devoid of merits. Petition dismissed. .