The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.16172 OF 2016 (An application under Articles 226 and 227 of the Constitution of India) Dr.(Mrs) Anjali Pattanaik … Petitioner -versus- Berhampur University and others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr. Kalyan Patnaik, Advocate -versus- For Opposite Party Nos.1,2 & 3 Advocate : Mr.Anshuram Mishra For Opp.Party No.4 Advocate. : Mr.Sanjeev Udgata, For Opp.Party No.5 : Mr. J.K.Mishra, Sr. Advocate & Mr.P.C.Behera, Advocate --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA Page 1 of 26 18.10.2023. JUDGMENT Sashikanta Mishra,J. The Petitioner was appointed as Lecturer in Home Science on 7th December, 1984 in Berhampur University. Prior to that she was working as Lecturer in Home Science in an aided College namely, Sri Satyasai College for Women, Bhubaneswar from 6th December, 1982 to 4th December, 1984. On completion of 8 years of service including her past service, she was placed in the senior scale by order dated 9th May, 1994 w.e.f. 6th December, 1990. By such time she had completed one Orientation course from Utkal University, which was from 24th October, 1989 to 22nd November, 1989. She was also awarded Ph.D. degree from Utkal University on 20th August, 1991. Thereafter she completed second Orientation course from Utkal University from 19th November, 1991 to 13th December, 1991 and first Refresher course from SNDT Women’s University, Bombay, from 7th November, 1994 to 26th November, 1994. She also participated in National Workshop on “Folkloristic” from 7th January, 1994 to W.P.(C) No. 16172 of 2016 Page 2 of 26 16th January, 1994 organized by Central Institute of Languages, Mysore. On 12th April, 1994 she requested the University authorities to forward her name for an Orientation course being organized by Utkal University, but the same was turned down by letter dated 3rd May, 1994 on the ground that she had already attended two such courses as per the guidelines of U.G.C. The selection committee of the University considered her application for promotion to the post of Reader and recommended her name which was finally approved by the Syndicate. As such, the Petitioner was promoted to the post of Reader by order dated 7th January, 1997 w.e.f. 6th December, 1995. As per circular dated 6th November, 2004 for promotion to the post of Professor, the Petitioner applied for the same as by then she had completed 8 years of service as Reader since 2003 and had Ph.D. and D.Lit. Degree from Utkal University. The Selection Committee recommended her name, which was placed before the Syndicate Sub-committee and the Syndicate for approval. Finally, the recommendation was placed before the Chancellor after W.P.(C) No. 16172 of 2016 Page 3 of 26 approval was accorded by the syndicate. While the matter stood thus, she was served with a show cause notice issued by the Registrar of the University asking her to show cause as to why the order of the Chancellor shall not be implemented. The Chancellor had observed that she was required to undergo 4 Refresher courses, two before placement as Lecturer senior scale and two before placement as Reader, but she had completed only 3 Refresher courses. Being thus deficient of one Refresher course, her further career advancement to the post of Professor cannot be permitted till she fulfils the stipulation of undergoing one Refresher course. The Petitioner submitted her reply by letter dated 5th January, 2007 that after being promoted as Reader she had never received any communication from the University authority to attend Refresher/Orientation course and that her name was duly recommended by the Syndicate after being scrutinized by the Syndicate Sub-committee. Her promotion to the post of Reader was never questioned. Subsequently, the Petitioner was allowed to undergo Refresher course from 13th March, W.P.(C) No. 16172 of 2016 Page 4 of 26 2008 to 2nd April, 2008 organized by Utkal University. Ultimately, by order dated 31st October, 2009 she was promoted to the post of Professor w.e.f. 2nd April, 2008. Thereafter she submitted representations to the Chancellor to prepone her date of promotion to 6th December, 2003, the date on which she was eligible. After several reminders, her representation was rejected by order dated 6th June, 2016. According to the Petitioner, the so called deficiency in undergoing Orientation/Refresher courses had been exempted by the University authorities at the relevant time because she possessed a Ph.D. degree. Therefore, the so- called deficiency could not have been agitated after so many years. In any case, she cannot be blamed for not fulfilling the requirement because her request to permit her to undergo Orientation/Refresher courses had been turned down by the University authorities at the relevant time. It is also stated that the Syndicate is the competent authority in matters of promotion as per the provisions of the Odisha University Act, 1989 and the Chancellor is the Appellate authority. Therefore, the W.P.(C) No. 16172 of 2016 Page 5 of 26 Syndicate could not have recommended her case for promotion to the Chancellor. On such facts, the Petitioner has filed the present Writ Petition with the following prayer; “Therefore, it is prayed that your Lordships would be pleased to issue Rule Nisi calling upon the O.Ps. to show cause why the impugned order under Annexure-23 should not be quashed and why the promotion of petitioner should not prepone to 6.12.2003 when she is eligible for consideration, and if the Opposite Parties fail to show cause or show insufficient or false cause make the rule nisi absolute.” 2. Separate counter affidavits have been filed by Berhampur University, U.G.C. and the Chancellor. In its counter, the Berhampur University, while not disputing the facts has referred to the letter dated 14th August, 2001 issued by the Chancellor requiring his approval before issuing order of promotions under CAS irrespective of the U.G.C recommendations. 3. The U.G.C. in its counter has reiterated that the Petitioner is required to undergo 4 Refresher courses, i.e. two before placement in the grade of Lecturer Senior Scale and two before placement in grade of W.P.(C) No. 16172 of 2016 Page 6 of 26 Reader, but the Petitioner completed only three Refresher courses. She was promoted to the grade of Professor only when she completed the second Refresher course. Reference has also be made to the U.G.C. Notification, 1998 and in particular, Clause 7.2.0 (ii) and 7.4.1(v) and 7.7.0. 4. In the counter filed on behalf of the Chancellor, it is stated that the requirement of having two Refresher/Orientation courses for being placed in Senior Scale and two such courses for being placed in the scale of Reader is as per the Notification dated 3rd November, 1989 of the Government of Orissa in the erstwhile Education and Youth Services Department. The Petitioner had only one Orientation course without any Ph.D. as on 6th December, 1990 and therefore, she was wrongly placed in the Senior Scale. Even at the time of promotion to the post of Reader on 6th December, 1995 she was falling short of one Refresher/Orientation course. Thus, as against the overall requirement of 4 such courses there was W.P.(C) No. 16172 of 2016 Page 7 of 26 deficiency of one course. As regards the recommendation of the Syndicate Sub-Committee for promotion to the post of Professor w.e.f. 4th September, 2005, same was without assigning any reason and the recommendation of the selection committee was without mentioning the effective date of promotion. Since the deficiency was detected at the time of consideration of the recommendation, she was called upon to show cause in response to which the Petitioner did not dispute the same. It is further stated that the relaxation as claimed by the Petitioner as per U.G.C. circular is prospective in nature. Since the Petitioner did not possess the required eligibility at the relevant time no estoppel would operate prohibiting the authorities from rectifying the same subsequently. 5.
Legal Reasoning
Heard Mr. Kalyan Pattanaik, learned counsel for the Petitioner, Mr. Anshuram Mishra, learned counsel for the Berhampur University (Opp.Party Nos.1,2 and 3), Mr. S. Udgata, learned counsel for the Chancellor (Opposite Party No.4) and Mr. J.K.Mishra, learned W.P.(C) No. 16172 of 2016 Page 8 of 26 Senior counsel assisted by Mr. P.C. Behera, learned counsel for the U.G.C. (Opposite Party No.5). 6. Mr. K. Pattanaik, learned counsel for the Petitioner, would argue that the Petitioner was placed in the Senior Scale and thereafter in the Reader scale and by such time she had undertaken three Orientation/Refresher course along with Ph.D. degree. She was also awarded with D.Lit. in the year 2001. Referring to the U.G.C. guidelines Mr. Pattanaik would argue that in case of possession of Ph.D. Degree, exemption from one Orientation course can be granted. Therefore, considering his Ph.D. qualification along with one Orientation course in 1991 and Refresher course in 1994, she was rightly placed in the grade of Reader w.e.f. 1995. The U.G.C. Notification on Revision of Pay Scales, Minimum Qualifications for Appointment of Teachers in Universities and Colleges and other Measures for the Maintenance of Standards, 1998 (U.G.C. Notification) provides that a Lecturer with Ph.D. degree is exempted from one Refresher course W.P.(C) No. 16172 of 2016 Page 9 of 26 for being placed in the Lecturer Senior Scale as per Clause 7.2.0. Mr. Pattanaik further argues that even otherwise non-attending the Orientation/Refresher course cannot be a ground to deprive the Petitioner from promotion from the due date since it is not within her control to undertake such course at her own will. On the contrary, the University authorities had at the relevant time refused to forward her name for undertaking the Orientation course and therefore, they are estopped from taking the plea as referred above. Mr. Pattanaik further argues that the Syndicate is competent to grant promotion under the career advancement scheme and the Chancellor is only the appellate authority but by interfering with the promotion process, a valuable right of appeal of an aggrieved Lecturer has been taken away. Therefore, rejection of her claim for antedating her promotion to the post of Professor to 6th December, 2003 by the Chancellor is entirely contrary to law. W.P.(C) No. 16172 of 2016 Page 10 of 26 7. Mr. Anshuram Mishra, learned counsel appearing for the Berhampur University, contends that the University is bound by the order of the Chancellor and therefore, had no option but to seek approval of the recommendations of the Syndicate from the Chancellor. In any event, the petitioner having undergone Refresher course from 13th March, 2008 to 2nd April, 2008, she was promoted to the post of Professor w.e.f. 2nd April, 2008 being duly approved by the Chancellor. 8. Mr. J.K.Mishra, learned Senior counsel, submits that as per the requirement the petitioner is to undergo 4 Refresher courses, 2 before placement in the grade of Lecturer Senior Scale and two before placement in the grade of Reader. The Petitioner had completed only 3 Refresher courses and therefore, she could not have been placed in the post of Professor under career advancement scheme until fulfillment of this stipulation. W.P.(C) No. 16172 of 2016 Page 11 of 26 9. Mr. Sanjeev Udgata, learned counsel appearing for the Chancellor submits that despite undergoing only one Orientation course, the Petitioner was placed in the post of Lecturer Senior Scale which was a mistake committed by the University. Therefore, at the time of her promotion to the post of Reader as on 6th December, 1995, she was falling short of one Refresher/Orientation course. Despite the deficiency she was again mistakenly placed in the next higher grade in the grade of Reader. Mr. Udgata further submits that relaxation as claimed by the Petitioner as per U.G.C. circular is prospective in nature and in any event does not apply to her because she did not possess the requisite Ph.D. degree as on the date of her placement in the Senior Scale under C.A.S. Referring to several case laws, Mr. Udgata further argues that there can be no estoppel against law and therefore, having detected the mistake at a later stage, it was well within the right of the competent authority to reject her claim of antedating promotion. W.P.(C) No. 16172 of 2016 Page 12 of 26 10. Before examining the merits of the claim of the Petitioner as reflected in the prayer made in the Writ Petition, this Court deems it proper to keep certain basic facts in perspective. As already stated, the Petitioner was placed in the Senior Scale w.e.f. 6th December, 1990 and promoted as a Reader w.e.f. 6th December, 1995. Much argument has been made on behalf of the Opp. Parties as to the lack of qualification of the Petitioner in the form of not having undergone the requisite number of Refresher/Orientation courses at the relevant time for being placed in both Senior Scale was well as Reader. Her placement in the Senior Scale was made nearly 26 years ago (considering the date of filing of the Writ Petition). It is a fait accompli. Similar is the case if one considers that she was placed in the Reader Scale 21 years back. There is absolutely nothing on record to suggest that there was ever any motion by the authorities to recall the orders of placement made in respect of the Petitioner as above on the purported ground of non-possession of the required qualification even once in all these years. W.P.(C) No. 16172 of 2016 Page 13 of 26 Learned counsel appearing for the Chancellor has attempted to persuade this Court that the principle of estoppel would not apply to correct a mistake of law, but this Court is not impressed by such argument because no such step has yet been taken in this regard and therefore, on a mere theoretical proposition, a long standing situation cannot be questioned or disturbed at this distance of time. This Court therefore, holds that the question of the Petitioner possessing the required qualification as per the rules/guidelines/ norms prevalent at that time are no longer open to be questioned. 11. A good many case-laws have been cited by Shri Udgata to buttress his contentions as indicated above. On the question that the petitioner’s placement in the Senior Scale and Reader Scale were mistakes and that it is permissible for the authorities to rectify the same at any time, Shri Udgata relies upon the decision of the Supreme Court in State of Maharashtra and another Vrs Tara Ashwin Patel and others; (2016) W.P.(C) No. 16172 of 2016 Page 14 of 26 15 SCC 717; Maharshi Dayanand University Vrs Surjeet Kaur; (2010) 11 SCC 159; Union of India and another Vrs Narendra Singh; (2008) 2 SCC 750 and Ramesh Gajendra Jadhav Vrs Secretary, Late SGSP Mandal and Ors; AIR 2010 SC 3502. In Tara Ashwin Patel (supra), the question under consideration was whether up-gradation of the post held by the concerned employees would have any bearing on grant of senior scale to them. The Court answered the question in the negative by holding that the deemed service would not count towards actual physical service rendered by them. Such is not the case at hand at all. In the next three cases, it has been basically laid down that the employer cannot be prevented from rectifying its mistake even it may cause hardship and that a collective error on the part of the University cannot vest indefeasible legal right in the person. There is no quarrel with the proposition. But the point is, till date the authorities have not actually taken any step to correct the so-called mistake that occurred more than W.P.(C) No. 16172 of 2016 Page 15 of 26 two decades back. Rectifying the mistake would have entailed recalling the order of placement of the petitioner in the Senior Scale and Reader Scale but not by denying her promotion to the next higher post of Professor, which would be dependent upon whether she was qualified for the same or not. So, without rectifying the mistake, if at all, committed at a time long past and at the same time insisting upon compliance of the requirement prescribed for the previously held posts while considering the promotion to the next higher post of Professor would not be permissible in law. 12. The above being the finding of this Court, the only question that requires to be determined is, whether the Petitioner had the requisite qualification for being promoted as Professor and that too, from the date claimed by her, i.e. 6th December, 2003. In this regard, reference may be had to the UGC Notification on revision of Pay Scale, Minimum Qualifications for Appointment of Teachers in W.P.(C) No. 16172 of 2016 Page 16 of 26 Universities and Colleges and other Measures for the Maintenance of Standards, 1998 (U.G.C Notification, 1998). Paragraphs-7.5.0 and 7.6.0 of the said Notification deals with promotion to the post of Professor and read as follows; “7.5.0. In addition to the sanctioned position of Professor, which must be filled in through direct recruitment India advertisement, promotions may be made from the post of Reader to that of Professor after 8 years of service as Reader. through all 7.6.0. The Selection Committee for promotion to the post of Professor should be the same as that for direct recruitment. For the promotion from Reader to Professor, the following method of promotion may be followed. The candidate should present herself/himself before the Selection Committee with some of the following: (a) Self-appraisal reports (required) (b) Research contribution/books/articles published (c) Any other academic contributions. The best three written contributions of the teacher (as defined by her/him) may be sent in advance to the Experts to review before coming candidate should be asked to submit these in 3 seats with the application. for the selection. The (d) Seminars/conferences attended. (e) Contribution to teaching/academic environment/ Institutional corporate life. W.P.(C) No. 16172 of 2016 Page 17 of 26 (f) Emission and field outreach activities.” Clause-iii of Paragraph 7.7.0 reads as follows; two Seminars/Conferences “(iii) The senior teachers like Readers/Lecturers (Selection Grade) and Professors may opt to their attend subject area and present papers as one aspect of their promotion selection to higher level or attend refresher courses to be offered by ASC for this level.” in (Emphasis Added) Shri Udgata has cited the decision of the Supreme Court in the case of University Grants Commission and Another Vrs Nehal Anil Bobde (Gadekar); (2013) 10 SCC 519 to contend that the Court shall not generally sit in appeal over the opinion expressed by expert academic bodies and that to maintain the standards of teaching UGC is competent to lay down qualifying criteria. He has also cited the decision in the case of Subhash Chandra Dhrupta and Another Vrs State of HP and Others; (2000) 10 SCC 82 to support his argument that a promotee has to fulfill the educational qualification prescribed in the rule. He also cited the decision of the Supreme Court W.P.(C) No. 16172 of 2016 Page 18 of 26 in the case of State of Gujarat and Ors Vrs Arvindkumar T Tiwari and Anr; AIR 2012 SC 3281 to contend that eligibility criteria as laid down by the executive authority/legislature cannot be relaxed on the order of the Court. This Court finds no difficulty in agreeing with the propositions laid down in all the above referred case-laws. In fact, this Court would also place reliance entirely on the criteria if any laid down by the UGC. Further, there can be no second opinion that a person can be promoted only if he/she meets the requisite criteria and not otherwise. 13. The Government of Odisha in the department of Higher Education came out with a Resolution dated 31st December, 1999 on the subject of revision of pay scale, minimum qualifications for the appointment of Teachers in the Universities and Colleges and other Measures for Maintenance of Standards. Paragraph-2 of the said Resolution read as follows; W.P.(C) No. 16172 of 2016 Page 19 of 26 “2. The Government of India after considering the various recommendations of the UGC on revision of Pay Scales of University and College Teacher, communicated their decision to State Government in their letter No. F.1-22/97-Ul, dated the 27th July 1998 and requested to implement the scheme in the State after taking local conditions into consideration, and with all the conditions to be laid down in this regard by the U.G.C. by way of Regulations. Accordingly the U.G.C, had communicated their Notification on “Revision of Pay Scales, Minimum qualifications in for appointment of Universities and Colleges and other measures for the maintenance of standards, 1998” in their letter No F3-1/94(PS), dated the 24th December 1998 and requested to implement the same for Universities and affiliated Colleges.” teachers Thus, the U.G.C. Notification, 1998 was accepted by the Government of Odisha. Pargaraph-4.9.0. deals with career advancement and 4.10 deals with Professor (promotion). The same read as follows; “4.9.0. Career Advancement: (a) Minimum length of serve for eligibility is to move into the grade of Lecturer(Senior Scale) would be four years for these with Ph.D, five years for with M.Phil, and six years for others at the level of Lecturer, and for eligibility to move (Selection Grade)/Reader, the minimum length of service as Lecturer Senior Scale) shall be uniformly five years. the Grade of Lecturer into (b) For movement into grades of Reader and above, the eligibility criterion would be Ph.D. These without Ph. D can go upto the level of Lecturer (Senior Grade). (c)A leader with a minimum of eight years of service in that grade will be eligible to be considered for appointment as a Professor. W.P.(C) No. 16172 of 2016 Page 20 of 26 (d) The Selection Committees for Career Advancement at different grade shall be the same as those for Direct Recruitment for each category. 4.10. Professor (Promotion): (a) The scheme of promotion from Reader to Professor shall be implemented in Universities and Government Colleges in accordance with the U.G.C. guidelines. (b) In addition to the sanctioned position of Professors, which must be filled in through direct recruitment through all India advertisements, promotions may be made from the post of Reader to that of Professor after 8 years of service as Reader. (c) The Selection Committee for promotion to the post of Professor should be the same as that for direct recruitment. For the promotion from Reader to Professor, the following method of promotion may be followed. (d) The candidate should present herself/himself before the Selection Committee with some of the following: (a) Self-appraisal reports (required) (b) Research contribution/books/articles published (c) Any other academic contributions. The best three written contributions of the teacher (as defined by her/him) may be sent in advance to the Experts to review before coming candidate should be asked to submit these in 3 seats with the application. for the selection. The (d) Seminars/conferences attended. (e) Contribution to teaching/academic environment/ Institutional corporate life. (f) Emission and field outreach activities.” W.P.(C) No. 16172 of 2016 Page 21 of 26 Paragraph-4.11 deals with participation in Orientation and Refresher course. Clause(a), (b)(i)(ii) do not relate to Professors. Sub-clause (iii) of Clause (b) of Paragraph 4.11 reads follows; two Seminars/Conferences “(iii) The senior teachers like Readers/Lecturers (Selection Grade) and Professors may opt to their attend subject area and present papers as one aspect of their promotion selection to higher level or attend refresher courses to be offered by ASC for this level.” in (Emphasis Added) Thus on a conjoint reading of the U.G.C Notification, 1998 and the Government Resolution dated 31st December, 1999, it is abundantly clear that firstly, the norms prescribed for promotion to Professor from Reader is by and large the same and secondly, there is no mandatory requirement for a Reader to undergo 2 Refresher/Orientation courses for being promoted to the post of Professor. In fact, the very language employed in Clause (iii) of Paragraph 7.7.0 of U.G.C Notification, 1998 and Sub-clause (iii) of Clause (b) of Paragraph 4.11 of Government Resolution dtd.31st December, 1999 i.e. ‘may opt’ and ‘or’ clearly W.P.(C) No. 16172 of 2016 Page 22 of 26 shows that attending seminars/conferences/ orientation/ refresher courses is not a mandatory requirement for being promoted to the post of Professor. In fact, the Petitioner’s claim for promotion was rejected only on the ground that she was required to undergo 4 Refresher courses, 2 before placement as Lecturer Senior Scale and 2 before placement as Reader, but she had completed only 3 such courses. 14. Thus, in effect, what the authorities have put forth as a ground to reject her claim for Professor is by falling back upon the requirement she was supposed to possess at the time of her placement in the Senior Scale 26 years ago and as a Reader 21 years ago. Is such a course of action conscionable in law? The answer would obviously be in the negative. Having granted the benefit of placement in the Senior Scale and as Reader for so long, the University cannot rake up the question of qualification at this stage. Moreover, neither the U.G.C. Notification, 1998 nor the W.P.(C) No. 16172 of 2016 Page 23 of 26 Government Resolution dated 31st December, 1999 prescribe any such criteria as a mandatory requirement. The Petitioner’s claim for being considered for promotion to the post of Professor after completing 8 years in the rank of Reader could not therefore have been denied by the authorities, much less on the ground cited by them. The decisions cited as referred above are of no help to Mr Udgata. 15. Reference to the language used in the aforementioned Notification and Resolution i.e., ‘may opt’ clearly suggests that the U.G.C. did not deem it proper to insist upon the requirement of undergoing Refresher/Orientation course mandatorily for Senior Teachers like Readers obviously because by such time such Teachers would have acquired sufficient level of skill and proficiency in their respective subjects so that undergoing such courses by them would be redundant. In view of what has been discussed herein before, the other case-laws cited by Mr Udgata are not W.P.(C) No. 16172 of 2016 Page 24 of 26 required to be discussed as the same are on points not germane to the facts in issue. 16. Thus, from a conspectus of the analysis of the relevant provisions of the U.G.C Notification, 1998 and the Government Resolution dated 31st December, 1999, this Court is of the considered view that the Petitioner was eligible for being considered for promotion to the post of Professor w.e.f. 6th December, 2003 having completed 8 years of service as Reader. Further, the ground on which her claim was refused by the authorities is untenable in the eye of law. This Court therefore, finds that the Petitioner has made out a good case for interference by this Court. 17. In the result, the Writ Petition is allowed. The impugned order under Annexure-23 is hereby quashed. The Opposite Party-authorities are directed to pass necessary orders to antedate the promotion of the Petitioner to the post of Professor w.e.f. 6th December, 2003 with all consequential service and financial benefits. Such order should be passed within a period W.P.(C) No. 16172 of 2016 Page 25 of 26 of 2 months from the date of production of certified copy of this order by the Petitioner. ………..…….……………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Oct-2023 10:50:03 W.P.(C) No. 16172 of 2016 Page 26 of 26