Dr. Kailash Vihari vs Union of India (UOI) and Others

D.G.R. Patnaik, J.—Heard Shri S. Anwar, learned Senior Counsel for the petitioner and Shri S. Choudhary, learned Counsel for the respondents.

The petitioner in this writ application has prayed for the following relief(s).

For issuance of an appropriate writ directing the concerned respondents to promote the petitioner to the post of Associate Professor and to the post of Professor with retrospective effect, from the due date.

For a direction to the respondents to implement and follow the provisions of composite scheme of the respondent No. 1 dated 28.2.1989 (Annexure-8) and also the provisions of the State Government''s Circular / direction as contained in letter No. 379 dated 16.2.1990 (Annexure-9)

For quashing the decision of the respondent No. 3 vide Memo No. 302 dated 1.2.1994 (Annexure-10) and the notification issued consequent upon issuance of Annexure-10 whereby Birla Institute of Technology in which petitioner was appointed, was not included within the purview of the notification.

Petitioner''s case in brief is as follows:

The petitioner after having graduated in Mechanical Engineering in the 1963, obtained Post Graduate Degree in the same faculty from I.T.I., Kharagpur in the year 1968 and thereafter obtained doctorate degree in 1981.

He was appointed as a temporary Lecturer in the Bihar College of Engineering and later, was appointed as an Assistant Professor with seven advanced increments under the respondent No. 5, namely the Birla Institute of Technology, Mesra by its Vice Chancellor on the recommendation of the University Service Commission, Bihar and upon such appointment, he joined his posting in the Birla Institute of Technology, Mesra in 1971.

At that time i.e. in the year 1971, the respondent No. 5 was an affiliated college of the Ranchi University. Later, in March 1972, an autonomous status was granted to the college by the Ranchi University which it continued to enjoy till 28.8.1986 on which date, it was declared a Deemed University u/s 3 of the University Grants Commission Act, 1956. During the period when the college was an affiliated college of the Ranchi University, it was governed by the statutes of the Ranchi University in matters relating to time bound promotion of lecturers to the post of Readers.

When the benefits of the scheme for time bound promotion was not given to the petitioner and similarly situated other lecturers of the College, then the Birla Institute of Technology Teachers'' Association, moved the Supreme Court vide Writ Petition No. 6747 of 1982. The Writ Petition was disposed of on 19.9.1983 with a declaration that on the basis of the agreement between the parties, the terms and conditions of service as applicable to the affiliated college of the Ranchi University, as they exist on the date, shall be applicable to such of the teachers of the Birla Institute of Technology who opt for the same. Accordingly, the petitioner and several other teachers gave their option for the application of the terms and conditions of service of the affiliated colleges of the Ranchi University.

In spite of exercise of option by the teachers, the respondent No. 5 did not comply with the order of the Supreme Court. Consequently, the Teachers'' Association filed a contempt petition before the Supreme Court vide Civil Miscellaneous Petition No. 585 of 1987. The Contempt Petition was disposed of by the Supreme Court with an observation and direction that the benefits be extended to the teachers within two months and while giving effect to the benefits, the pattern followed in Jamshedpur Engineering College should be the basis.

The grievance of the petitioner is that despite the aforesaid orders of the Supreme Court, the respondent No. 5 did not promote the petitioner as per the relevant statute governing the Ranchi University dated 14/24.11.1981 read with the amended statute dated 16.4.1985, under which the provisions of the statute was extended to the Engineering colleges also and by which a teacher having Masters Degree in Engineering with thirteen years of continued experience, became eligible for promotion to the post of Reader or Associate Professor. The petitioner''s further contention is that even Ranchi University, through its letter dated 10.8.1989, had recommended the case of the petitioner for his promotion to the post of Associate Professor with effect from 10.9.1984 in accordance with the provisions of the Statute, but the benefits were denied to him.

Upon such denial of the benefits despite the several recommendations and earlier orders of the Supreme Court, the grievance of the teachers was again referred to the Supreme Court. Vide order dated 28.9.1989, the Supreme Court disposed of the writ petition by issuing a direction to the respondents that the benefits which had accrued from 1983, till the time the institution namely, the respondent No. 5 was declared as a Deemed University, shall be made available to both the categories of teachers (opting or non-opting) and shall be worked out by the institution on the basis of the pre existing Regulation applicable to the institution.

Further grievance of the petitioner is that by Circular dated 28 2.1989 (Annexure-7), the respondent Union of India directed each State / Union Territory to implement the scheme of revision of pay scales of teachers of Engineering Colleges and Technical Institutions with effect from 1st January 1986 and the composite scheme was also annexed to the Circular. Accordingly, the composite scheme was to be implemented without any modification except to the date of implementation and the scale of pay. Pursuant to the aforesaid letter (Annexure-8) of the Central Government, the respondent No. 3 namely, the State of Bihar also issued a notification dated 16.2.1990 (Annexure-9) making the terms of the composite scheme of the Central Government applicable to all the Engineering Colleges under its control in Bihar. However, though the State of Bihar allowed promotion under the existing statutes to the teachers'' of Engineering Colleges under its control, but had excluded the Birla Institute of Technology, Mesra (Respondent No. 5) from the purview of the notification. Thus, the benefits of such statute relating to grant of time bound promotion up to 1.3.1989 was denied to the petitioner and other teachers of Birla Institute of Technology, Mesra, though such benefit was extended to the teachers of the other Engineering Colleges of the State.

In the background of the aforesaid facts, the petitioner has claimed that the respondent No. 5 was bound by the composite scheme as contained in Annexure-8 and was bound to implement the scheme in favour of the teachers serving under it and also to abide by the directions of the University Grants Commission under which a teacher was entitled to claim and receive the benefits of the Career Advancement Scheme.

The grievance of the petitioner is that instead of giving benefit of time bound promotion scheme and career advancement scheme to the existing teachers, the respondent No. 5 adopted arbitrary methods of appointing teachers on contract basis without any open advertisement and interview and even without the appointees possessing the requisite qualifications. Petitioner has cited several instances of such appointment on contract basis claiming the same to be illegal and arbitrary.

During the pendency of this writ application, the petitioner had retired from service on the post of Assistant Professor.

The contesting respondent Nos. 5, 6 and 7 who represent the BIT Mesra, have filed their counter-affidavit through the Registrar, BIT, Mesra. It is explained that after its establishment in 1955, BIT Mesra was functioning as an affiliated college of Ranchi University up to March 1972 and the Rules, Service Conditions and academic Regulations of the Ranchi University were followed by the Institute. Thereafter, the Institute acquired the status of autonomous college in March 1972, pursuant to the amendment in the Bihar State Universities Act, which empowered the Institute to frame its own Rules and Regulations relating to its governance, including the Service Conditions of the employees, Regulations for including courses of academic programmes and conducting examinations etc. The Rules so framed by the Institute, was approved by the Chancellor of the University of the State of Bihar. The autonomous status continued to be enjoyed by the Institute till May 1986, where-after, it was declared as a Deemed University. After acquiring the status of Deemed University, a new set of Rules for governance of the university was framed by the University Grants Commission and the Central Government and the Rules and Regulations as framed was approved by the Chancellor of the State of Bihar.

Denying the petitioner''s allegation that despite 24 years of service as an Assistant Professor in the Institute, he was not granted any promotion during his entire service career, the stand taken by the respondents is that in between 1984-1995, vacancies for the post of Professor and Associate Professor in the Mechanical Engineering Department, were advertised inviting applications from the eligible candidates. Such advertisements were published as many as on five occasions. On three occasions, the petitioner had applied for considering his candidature, the first in the year 1984, the second in the year 1988 and the last in the year 1993. On all the three occasions, his candidature was considered by the Selection Committee. On the first two occasions, he was not found eligible by the Selection Committee. However, on the third occasion i.e. in the year 1993, he was short listed along with 121 other candidates on the recommendation of the Selection Committee and was placed for consideration before the Board of Governors which is the competent authority. The Board cleared the cases of the 31 candidates who were already working in the same post on contract basis. The cases of the remaining 89 candidates including the petitioner, were referred by the Board to the High Power Screening Committee. After considering the cases of the candidates, the Screening Committee submitted a list of candidates who were recommended for promotion, but the petitioner''s name did not figure in the same and as such, he could not be appointed to the post of Associate Professor. On the other two earlier occasions i.e. in 1986 and 1989 when the post was advertised, the petitioner did not apply and as such, there could be no occasion for referring his case to the Selection Committee. It is explained that as per the Statutes, all appointments to the different categories of posts on the basis of open advertisements and appointments, are made by the Board of Governors on the recommendation of the duly constituted Selection Committee. There is no provision or system in the existing Rules of the Institute for granting promotion to the teachers and all cases of internal candidates are considered / processed by the Selection Committee for appointment / contract appointment on the higher post.

It is further explained that the Rules of the Institute do provide for making short term appointment on "Contract Basis" in the prescribed pay scales and under the terms and conditions applicable to the relevant post. Such appointments are made by the Board for a period not exceeding five years.

As regards the petitioner''s grievance for non-granting of benefits of time bound promotion scheme and alleged non-compliance of the orders of the Supreme Court, it is sought to be explained that in the writ petition filed by the Teachers'' Association of the Institute vide writ petition No. 6747 of 1982, a direction was issued by the Supreme Court by its older dated 19.9.1983 making the terms and conditions of service as applicable to the affiliated colleges of Ranchi University as existed on the date, applicable to such of the teachers of the BIT, Mesra who opt for the same. This direction was fully implemented by the Institute and the admissible benefits were granted to those teachers who were found eligible. However, for time bound promotion, cases of all the eligible teachers, including the petitioner, were referred to the Ranchi University. The Ranchi University in its turn, cleared the cases of only nine teachers for their promotion under the time bound promotion scheme and such teachers were granted the benefits thereof. The cases of five other teachers including the petitioner, were not cleared by the Ranchi University. Meanwhile, the Institute became a deemed university.

Challenging and controverting the above stand as taken by the respondents, the petitioner by filing a supplementary affidavit, would explain that the respondents have given a wrong, misleading and evasive affidavit suppressing the fact that there were two promotional schemes operative in the Institute till 8.9.1988. The first one was Super Numerary promotion to the post of Associate Professor and Professor as per the Rules and Guidelines dated 28.12.1978 framed by the Board of Governors of the Institute and the other, as per the Ranchi University Statutes which were made applicable by the orders of the Supreme Court. Furthermore, as per Clause-11(1) of the Regulation of the Institute, there was also a provision for promotion. The petitioner has further sought to clarify that the respondents in their counter-affidavit, have tried to mislead the court by making an assertion that the Regulation of the Institute do provide for appointments on contract basis. The petitioner explains that even though, the provisions of Clause-14 of the Regulations do permit appointments on contract basis, but such appointments were not to be made as a normal Rule. Rather, it could be resorted to only by way of exceptional or special circumstances and that too, for appointment of eminent persons. The petitioner contends that taking undue advantage of the provisions of the Regulation for appointment on contract basis, the respondent Institute has been making appointments only on contract basis in all categories of posts i.e. from Professor to the post of Assistants and even Care Takers of Canteens and such contract appointments have also been illegally extended from time to time.

The petitioner explains that Clause 11(1) of the Regulation which relates to appointments to be made in the Institution, declares that all posts of the Institution, shall be filled up by advertisements. However, the Board shall have the power to decide on the recommendation of the Director, the particular post be filled up by invitation or by promotion from amongst the members of the staff of the Institution. The petitioner''s grievance is that though, he possessed all the requisite qualifications and was one of the most eligible candidates for promotion, but the benefits of the provisions of Clause 11(1) of the Regulations of the Institution was intentionally denied to the petitioner.

Attacking the claim of the respondents that it is only after the recommendation of the Screening Committee that promotions could be given, the petitioner explains that the Regulation of the Institute do not provide for constituting any "Screening Committee". Rather, as per Clause 11(6) of the Regulation of the Institute, "where a post is to be filled on contract basis or by invitation, the Chairman may, at his discretion, constitute such ad-hoc Selection Committees, as circumstances of each case may require". The petitioner asserts that the intervention of any "Screening Committee" after the recommendation made by the Selection Committee, is totally arbitrary and against the Regulations of the Institute and against the directives / orders of the Central Government. The Existing Regulations provides that all appointments and promotions are to be made on the recommendation of the Selection Committee, strictly in order of merit. The recommendation of the Selection Committee cannot be made amenable for tampering or reviewing by any other arbitrarily constituted "Screening Committee".

Reiterating his grievance, the petitioner explains that in the matter of any appointment / promotion of internal teachers to the higher post, no norm or mode for short term appointments, by way of resolution of the Board of Governors, was ever made. Yet, in absence of norms and guidelines and without circulation of notices to the eligible candidates, appointments / promotions were granted to the several internal teachers to the higher post purportedly on short term basis, though such short term periods were regularly extended from time to time.

From the rival submissions, the petitioner''s claim appears to be based on the following grounds.

I. After his appointment on the post of Assistant Professor, he had continuously rendered more than 24 years of service in the same post. He and several other teachers were left to stagnate on the same post without any prospect of promotion.

II. The Supreme Court by its order dated 19.9.1983 passed in the writ application vide Writ Petition No. 6747 of 1982 filed by the Teachers'' Association, declared that terms and conditions of service as applicable to the affiliated colleges of the Ranchi University, as they exist on the date, shall be applicable to such of the teachers of the Birla Institute of Technology, Mesra who opt for the same. The petitioner had submitted his option accordingly and was entitled to the benefits of the terms and condition of service of the Ranchi University which did provide for time bound promotion, but the petitioner was not given the benefit of the same.

III. Regulation of the Institute also provides for Super Numerary promotion and time bound promotion, but the benefit of the same was not given to the petitioner.

IV. Though, the Respondent No. 1 granted promotion to other internal teachers of the Institute, even to such persons who did not possess the requisite qualifications for the promotional post, the petitioner was malafidely denied the benefits of promotion in the most arbitrary manner.

Admittedly, the order passed by the Supreme Court in 1983 in the Wri. Petition No. 6747 of 1982 declared that the service conditions as existing in the Ranchi University on the date of the order, were to be applied to the teachers of the B.I.T., Mesra and accordingly, the promotional benefits as applicable to the teachers of the Ranchi University under the Rules of the Ranchi University, were to be given to the opting teachers of the B.I.T., Mesra. The benefits which had accrued on the basis of the above direction made in 1983 till the date B.I.T. became a deemed university, was to be made available to the teachers of B.I.T., Mesra. While giving effect to the benefits, the pattern obtained in Jamshedpur Engineering College, was made the basis since at that time, RIT, Jamshedpur was affiliated to the Ranchi University.

Admittedly, the relevant statute under which the Ranchi University was guided, as it existed on the date of the Supreme Court''s Order, was also extended to the Engineering Colleges. Undisputedly, according to the Statute of the Ranchi University (Annexure-4 and 4/A), a teacher having Masters Degree in Engineering and has completed 13 years of continuous experience, became eligible for promotion to the post of Reader / Associate Professor.

Undisputedly, upon considering the petitioner''s case, the Ranchi University by its order dated 10.8.1989, had also recommended the petitioner''s case for his promotion to the post of Associate Professor with effect from 16.9.1984, in accordance with the provisions of the Statute. The Respondent State Government had also issued a notification dated 17.8.1993, whereby a provision was included for promotion to the post of Associate Professor / Reader from the post of Assistant Professor / Lecturer possessing Masters Degree in Engineering with 13 years of continuous service. The benefit of the aforesaid notification was made available to the R.I.T., Jamshedpur and accordingly, the pattern as obtained in R.I.T., Jamshedpur, was applicable to the teachers of the respondent B.I.T., Mesra, as per the orders of the Supreme Court passed in the above mentioned writ petition. Furthermore, by its notification dated 28th February 1989 (Annexure-8), the Central Government through the Ministry of Human Resource Development (Department of Education), had prepared and declared a composite scheme for revision of scales of pay of teachers of technical Institutions including the Engineering Colleges and it also prescribed the guidelines for appointments to the post of Lecturers, Assistant Professors, Associate Professors, Professors, Librarian and Directors of Physical Education under which promotions were to be made by open selection on the basis of merit as per the prescribed qualifications and experience. The scheme was binding upon all the Engineering Colleges.

As it appears, the petitioner had admittedly opted as per the direction contained in the order of the Supreme Court, but the benefit of the Statute pertaining to the Ranchi University for appointment upon promotion, was not extended to the petitioner. The reply of the respondent Institute in this regard is that the case of several candidates including the petitioner, was forwarded to the Ranchi University, but the approval of the Ranchi University in respect of the petitioner and few others, was not received. If the petitioner''s name was short listed for his appointment on promotion, it implies that the petitioner was found suitable, and possessing the requisite qualification and work experience and was eligible for his promotion. If the approval of the Ranchi University was not promptly forthcoming, no explanation has been offered by the respondent University on its failure to find out as to why the approval was not forthcoming.

Contrary to such stand, it appears from Annexure-5 to the writ application that even Ranchi University had by its letter dated 10.8.1989, recommended the case of the petitioner for his promotion to the post of Associate Professor with effect from 16.9.1984.

The respondent would want to impress that it had advertised the vacancies to the post of Professor on as many as five occasions in different years and had afforded opportunity to the petitioner to apply for the same. Such appointment, according to the respondent Institute, was permissible under Clause-11 of its Regulations.

Even by reference to the provisions of Clause-11 of the Regulations, it provides only for constitution of ad-hoc Selection Committee authorized to select and recommend eligible candidates for appointment to the various posts. As rightly pointed out by the learned Counsel for the petitioner, the Regulation do not provide for constituting any other "Screening Committee" in addition to the ad-hoc Selection Committee. Even as admitted by the respondent Institute, the Selection Committee did approve and recommend the case of the petitioner at its meeting held on 23.7.1993. Yet, in spite of the recommendation made by the Selection Committee in favour of the petitioner, his promotion to the post of Associate Professor, was denied only on the ground that the "Screening Committee" of the "Board of Management" considered the recommendation of the Selection Committee but approved only to few candidates excluding the petitioner. No reason has been assigned why recommendation of the petitioner''s case even after selection by the Selection Committee, was excluded.

The petitioner has pointed out to the several instances where persons purportedly junior to him and who did not possess requisite qualifications, were granted promotions in a most arbitrary manner. This Court would not be inclined to go into those allegations and would rather confine to those facts and circumstances which relate to the petitioner''s claim for his own promotion both under the time bound promotion scheme and under the ACP Scheme.

The facts, as stated above, amply demonstrates that the petitioner was illegally and arbitrarily denied the benefits of the time bound promotion to which, he was entitled pursuant to the orders of the Supreme Court passed in the writ petition No. 6747 of 1982 and also pursuant to the provisions of statute which was made applicable to the petitioner. The petitioner was also denied the benefits of the composite scheme declared by the Central Government made applicable to all Engineering Colleges. As a consequence, the petitioner has not only been made to suffer stagnation in the post of Assistant Professor till the date of his retirement, but has also been made to suffer the loss of consequential benefits which would had accrued to him, had the promotion been granted in time. The contention of the respondent Institute that opportunities were offered to the petitioner and that, he had availed such opportunities, but could not succeed, does not adequately answer the question as to why the petitioner was not granted the benefit of time bound promotion in the first instance. The explanation offered by the Institute, also do not adequately answer as to why even after recommendation made in his favour by the Ranchi University and even by the Selection Committee constituted by the Institute itself, the benefits thereof was denied to him.

Considering the above facts and circumstances, I find merit in this application. Accordingly, the same is allowed. The petitioner is held entitled for time bound promotion and the corresponding monetary benefits thereof upon such promotion, in accordance with the direction contained in the order dated 19.9.1983 passed by the Supreme Court in Writ Petition No. 6747 of 1982 from the date when it fell due. Accordingly, I direct the respondent Institute namely, the respondent Nos. 5, 6 and 7 to assess the monetary benefits which would have accrued to the petitioner on the basis of his time bound promotion, from the date when it fell due, including the benefits on the revised pay scales and all other consequential benefits thereto. This exercise must be completed by the respondent Nos. 5, 6 and 7 within three months from the date of this order and the amount so assessed, shall be paid to the petitioner within the period stipulated.

With these observations and directions, this writ application is disposed of.