DR. SHARMILA SANDESH GHUGE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Rule. Rule made returnable forthwith and heard the learned counsel for the parties.

(2.) The petitioner is serving as an Assistant Professor and claims to be eligible for being promoted to the post of Associate Professor. Such promotion is liable to be effected under the Career Advancement Scheme (CAS). The candidature of the petitioner was accordingly considered by the Selection Committee for promotion to the post of Associate Professor on 03/07/2021. The Selection Committee recommended the petitioner 's promotion from Assistant Professor in Stage-3 to Associate Professor in Stage-4 from 03/07/2021. According to the petitioner she was entitled to the benefit under CAS from the date she acquired the requisite eligibility in view of Clause-7.3(VI)(i) of the Government Resolution dtd. 08/03/2019. However in view of amendment and additions made by the State Government vide Government Resolution dtd. 10/05/2019 stipulating the date of promotion to be the date of selection by CAS, she has been granted promotion from 03/07/2021. It is the case of the petitioner that she was eligible to be considered for promotion as on 01/01/2020 but by virtue of the recommendations made by the Selection Committee on finding her fit for promotion on 03/07/2021 which was the date of interview, she has been deprived of the benefit of promotion for a period of about eighteen months. Being aggrieved the petitioner has challenged Clause-7.3(VI)(i) of the Government Resolution dtd. 08/03/2019 to extent it has been so amended by Government Resolution dtd. 10/05/2019.

(3.) Ms Pushpa Ganediwala, the learned counsel for the petitioner submitted that it was not permissible for the State Government to have amended Clause-7.3(VI)(i) so as to prescribe the date of promotion to be the date of selection by CAS. Government Resolution dtd. 08/03/2019 vide Clause-7.3(VI)(i) had rightly prescribed the date of promotion to be effective from the date of eligibility which meant that the promotion when effected was liable to be so granted when the candidate became eligible for the same. Government Resolution dtd. 08/03/2019 was in accordance with the University Grants Commission Regulations, 2018 (for short, Regulations of 2018). Clause-6.3(VI)(i) thereof clearly prescribes that a candidate applying for promotion on the completion of minimum eligibility period on being successful was liable to be promoted from the minimum period of eligibility. The Regulations of 2018 had been framed by the University Grants Commission (UGC) in the light of the power conferred by Sec. 26(1) of the University Grants Commission Act, 1956 (for short, the Act of 1956). The State Government having adopted the Regulations of 2018 in view of Government Resolution dtd. 08/03/2019, it was not permissible for the State Government to thereafter amend Clause-7.3(VI)(i) as was done by Government Resolution dtd. 10/05/2019. This exercise was without jurisdiction especially when the Regulations of 2018 had been published in the Gazzette of India and were binding on the State Government. Reference was made to Entry-66 in List-I-Union List under the Seventh Schedule to the Constitution of India and it was submitted that the Regulations of 2018 having been framed after being placed before both the houses of the Parliament, the State Government could not have amended Clause-7.3(VI)(i) to alter the date of promotion. Referring to the stand taken by the State Government through its Department of Higher and Technical Education that such amendment had been effected considering financial implications, it was submitted that the same cannot be a justification for such amendment. In that regard the learned counsel referred to the judgment of the Honourable Supreme Court in Gambhirdan K. Gadhvi vs. State of Gujarat and Ors. 2022 SCC Online SC 256 that the State Government having adopted the Regulations of 2018 the same have to be applied in the manner prescribed therein. It was not open for the State Government to modify the Regulations of 2018 by issuing a Government Resolution. Attention was also invited to the decision in Kalyani Mathivanan vs. K. V. Jeyaraj and ors. (2015) 6 SCC 363 wherein the aspect of conflict between the State University Act and the UGC Regulations was considered by the Honourable Supreme Court. It was held therein that having adopted the UGC Regulations of 2010 a diversion therefrom was not permissible. However in SLP Nos.21108-21109/2021 (Professor (DR) Sreejith P.S. vs. Dr Rajasree M.S. and Ors., the Honourable Supreme Court on 14/03/2022 noticed both the aforesaid decisions and issued notice in the said Special Leave Petition. It was thus submitted that the modification as undertaken was discriminatory, arbitrary and also violative of Article 14 of the Constitution of India. There was no justification to deny the benefit of promotion by CAS from the date of promotion when infact such benefit was admissible under the Regulations of 2018 from the date of acquiring eligibility period. The constitution of the Selection Committee and holding of interview were matters beyond the control of the petitioner and the benefit of promotion could not be delayed on this count. Promotion from the date of acquiring eligibility was more rational that from the date of interview/selection. The learned counsel placed reliance on the decisions in State of Maharashtra vs. Manubhai Pragaji Vashi and ors. (1995) 5 SCC 730, S. Seshachalam and ors. vs. Chairman, Bar Council of Tamil Nadu and ors. (2014) 16 SCC, Subramanian Swamy vs. Director, Central Bureau of Investigation and anr. (2014) 8 SCC 682 and Union of India and anr. vs. Hemraj Singh Chauhan and ors. (2010) 4 SCC 290. It was thus submitted that the petitioner was entitled to a declaration that she was entitled to the benefit of promotion from the date she acquired minimum eligibility as per Clause-7.3(VI)(i) of Government Resolution dtd. 08/03/2019.