High Court · 2009

14.5.2003. The services of the petitioner was confirmed w.e.f. 24.2.2005.

3. The petitioner obtained M. Tech degree from IIT, Delhi in the year 1998. In the year 2003, he availed study leave and went to IIT, Kanpur for his Ph.D i n Mechanical Engineering. The Regional Engineering Colleges of the country locat ed in 17 different places have been converted to National Institute of Technolog y with the status of deemed University to be fully funded by the Central Governm ent as notified by the Government of India on 14.5.2003.

2. The question of implementation of Career Advancement Scheme (CAS) for te achers, as approved by the Government of India by its letter dated 25.07.2001 an d circulated by the All India Council for Technical Education (AICTE) for Degree Level Technical Institution was under consideration of the concerned Ministry. It was decided to implement CAS in the NITs for which composition of the Selecti on Committee was revised. Promotion under CAS was made effective after approval of the recommendation of the Selection Committee by the Board of Governors (BOG) .

3. Placing reliance on the particular scheme, it is the case of the petitio ner that the effective date for giving benefit under CAS shall be the date on wh ich a candidate becomes eligible for placement as Lecturer in the senior scale, which for him, is in the year 2000. The selection test under the CAS was held on 17/18-01-2004 and he appeared in the selection. It is the grievances of the pet itioner that although he was selected but the benefit was not conferred on him f rom the date of his eligibility which is 26.6.2000, but instead the benefit has been given to him from 17.1.2004.

6. In paragraph 7 of the writ petition, the petitioner has named some other lecturers, who according to him are junior to him but have been conferred with the benefit of CAS with retrospective effect. Such stand has been reiterated in paragraph 8 of the writ petition. Being aggrieved by non-consideration of his ca se for placement as Lecturer in the senior scale with retrospective effect, the petitioner made Annexure-5 representation dated 17.2.2004. However, the prayer o f the petitioner along with some others was rejected by Annexure-6 letter dated 1.03.2007. Since the effective date of placement of the petitioner as Lecturer in t 7. he senior scale was not from 26.6.2000 and the same was conferred only w.e.f. 17 .01.2004, the petitioner was not allowed to appear in the selection test for sel ection grade under CAS conducted in May, 2006. However, one Shri P.K. Patowary, who according to the petitioner is junior to him was allowed to appear. Such sta tement has been made in paragraph-11 of the writ petition.

8. It is on the aforesaid basis, the petitioner has filed the writ petition claiming that he is entitled to get placement in the senior scale w.e.f. 26.6.2 000 with the consequential benefit of placement in the selection grade on comple tion of the qualifying service.

9. The respondents in the counter affidavit have denied the claim of the pe titioner. According to them, the BOG is not bound to accept the recommendations made by the Selection Committee and that the benefit under CAS shall be effectiv e from the date on which the BOG approves the recommendation of the Selection Co mmittee. Placing reliance on the documents annexed to the counter affidavit, the respondents have contended that the question of placing the petitioner in the s enior scale from the date of his eligibility does not arise. As regards the plea of the petitioner that some others were placed in the senior scale with retrosp ective effect, the respondents have contended that there was nothing wrong on th e part of the Selection Committee to recommend one candidate from an earlier dat e than another candidate. Such recommendations are made on the basis of the perf ormance in the interview.

10. Mr. A. Dasgupta, learned counsel for the petitioner referring to the afo resaid factual aspects of the matter and placing reliance on the decision of the Apex Court in Union of India Vs. M. Mathivanan, reported in (2006) 6 SCC 57, su bmitted that the petitioner is entitled to get the placement in the senior scale with retrospective effect. On the other hand Mr. R.P. Kakati, learned counsel r epresenting the respondents, upon a reference to the stand in the counter affida vit and the documents annexed thereto submitted that the petitioner is not entit led to any relief as his placement in the senior scale was based on the recommen dation of the Selection Committee and the BOG simply accepted the recommendation made by the Selection Committee.

11. I have given my anxious consideration to the submissions advanced by the learned counsel for the parties and the materials on record. Annexure-3 is an Office Memorandum dated 15.9.2003 issued by the Governm 12. ent of India in the Department of Human Resource Development, by which the deci sion to implement the CAS in the NITs was conveyed. In the said Office Memorandu m, it was indicated that the promotion under CAS shall be effective after approv al of the recommendations of the Selection Committee by the BOG of the NIT conce rned. However, in paragraph 3 of the Office Memorandum, it was indicated that th e effective date for giving benefit under CAS shall be the date on which the can didate becomes eligible for consideration under CAS or the date of implementatio n of the revised scale of pay in the Institute, whichever is earlier. Clause 3 f urther provides that if a candidate was not found fit by the Selection Committee , he /she might be reconsidered for promotion under CAS only after two years and if found fit, the date of effect for giving benefit shall be the date on which the BOG approves the recommendations of the Selection Committee.

13. It is on the above basis, the petitioner has claimed his promotion from June, 2000. On the other hand, Annexure A-1 Office Memorandum dated 04.03.2004, which has been issued in reference to the aforesaid Office Memorandum dated 15.9 .2003 speaks that the date of giving actual monetary benefit shall be the date o f meeting of the BOG of the NIT concerned in which the recommendations of the Se lection Committee for CAS are approved. The Office Memorandum was issued by way of clarification of the earlier Office Memorandum dated 15.9.2003. Same was foll owed by Annexure A-2 Office Memorandum dated 6.04.2004 further clarifying that i nitial pay fixation and consequent grant of financial benefits in the promotion grade shall be only from the date of the meeting of the BOG in which recommendat ions are approved and that there would not be any notional benefits/pay fixation prior to that date. It was further clarified by Annexure A-3 OM dated 4.6.2004, in terms of which the crucial date for determining the fulfillment of eligibili ty criteria for promotion under CAS shall be 1st July of every calendar year. It was clarified that the initial date of introduction of CAS shall be the actual date of notification regarding implementation of the revised scale of pay in the Institute but not the retrospective date of implementation of the revised scale s of pay i.e. 01.01.1996.

14. During the course of hearing Mr. R.P. Kakati, learned counsel for the re spondents produced the photocopy of the proceedings of the Selection Committee m eeting held on 18.01.2004. The Selection Committee considered the case of the pe titioner along with some others and he was recommended for placement in the seni or scale with effect from the date of meeting of the Selection Committee. Howeve r, some others including that of the category of Assistant Professor were consid ered for retrospective placement. At Sl. No. 6 & 7 of the names of the candidate s, the names of Upendra Kumar and Rajib Kumar Bhattacherjee appear, who were rec ommended for placement in the senior scale w.e.f. 06.06.2003 and 31.07.2002 resp ectively. Similarly, while some Assistant Professors were recommended for such p lacement with prospective effect but some others were recommended with retrospec tive effect. The reasons for such placement with effect from different dates is not discernable. Mr. Kakati, learned counsel for the respondents submitted that the BOG being bound by the recommendations made by the Selection Committee, so far as the effective date of promotion is concerned, accepted the recommendation s made by the Selection Committee which recommended placement of the petitioner with prospective effect and not with retrospective effect.

15. The matter involves interpretation of the Office Memorandum dated 15.09. 2003 in respect of which subsequent clarifications had also been issued, copies of which have been annexed to the counter affidavit. While Annexure-3 Office Mem orandum dated 15.9.2003 speaks of the effective date for giving benefit under th e CAS as the date on which the candidate becomes eligible for consideration unde r CAS, the subsequent Office Memorandums annexed to the counter affidavit speak otherwise. Annexure A-2 Office Memorandum dated 6.04.2004 stats that initial pay fixation and consequent grant of financial benefits in the promotion grade shal l be only from the date of meeting of the BOG. However, Mr. Dasgupta, learned co unsel for the petitioner submitted that the Annexure - 3 OM dated 15.9.2003 is u n-impeachable and the subsequent clarifications issued are only in respect of ac tual monetary benefit which does not have anything to do with the actual date of promotion.

16. As noted above, the reason for giving different effective dates of promo tion and /or placement in the senior scale by the Selection Committee is not at all discernable. It is one thing to say that the BOG is bound by the recommendat ions made by the Selection Committee but it is another thing to say that the Sel ection Committee is entitled to make recommendations of the incumbents from diff erent dates. If such recommendations are made with variations relating to the ef fective date of placement, the reasons thereof, should be discernable which in t he instant case, unfortunately is not. The records produced by the respondents a nd their stand in the counter affidavit are silent in that respect. Only stand o f the respondents is that the BOG is bound by the recommendations of the Selecti on Committee based on the performance. For all the aforesaid reasons, I am of the considered opinion that the m 17. atter needs a fresh consideration of the respondents upon a correct interpretati on of the Office Memorandums holding the field about which mention has been made above. The respondents may also take into consideration any other criteria gove rning the conditions relating to placement in the senior scale which the petitio ner claims shall be effective from the date of his eligibility.

18. The decision on which Mr. Dasgupta, learned counsel for the petitioner h as placed reliance i.e. M. Mathivanan (supra) is of no application to the case i n hand. That was a case of conferring benefit of promotion under a time bound pr omotion scheme under which an incumbent on completion of a particular length of service was entitled to get the promotion. In the instant case, it cannot be sai d conclusively that the petitioner was entitled to get the placement with retros pective effect i.e. from the date of earning the eligibility. It is for this rea son, I am of the considered opinion that the matter needs fresh consideration of the respondents.

19. In view of the above, the writ petition is disposed of with a direction to the respondents to give a fresh consideration to the case of the petitioner i n accordance with the guidelines holding the field. If upon such examination, it is found that the petitioner is entitled to get his placement with retrospectiv e effect as has been claimed by him i.e. with effect from 26.6.2000 or from any other earlier date than 17.1.2004, consequential orders thereof, shall be passed with further consequential benefits to which the petitioner may be entitled to. Whatever may be outcome of the fresh consideration of the case of the petition er, same shall be communicated to him. Entire exercise shall be carried out as e xpeditiously as possible, preferably within 31st May, 2009.

20. rder as to costs. With the above direction, the writ petition is disposed of without any o