Full Text
JUDGMENT
IN
DR. KIRAN GUPTA..... Petitioner
Through: Mr. Shashank Shekhar, Adv.
Through: Mr. Mohinder. J.S. Rupal and Mr. Hardik Rupal, Advs. for DU
1. This review petition has been filed by respondent No.1, University of Delhi seeking review of order/judgment dated March 08, 2021 passed in W.P.(C) 10564/2019.
2. By the judgment of which, review is being sought, this Court had allowed the petitions and set aside the decision of the Selection Committee / Executive Council dated July 04, 2019 to the extent that promotion has been given to the petitioner to the post of Professor, prospectively w.e.f. June 25, 2019.
3. At the outset, I may state here that review petitions have been filed in all three petitions which were disposed of vide order dated March 08, 2021. The review petitions in W.P(C) 10744/2019, Prof. P. B. Pankaja v. University of Delhi and Anr. and W.P.(C) NO. 10749/2019, Manju Arora Relan v. University of Delhi and Anr., have been dismissed by this Court as no ground for review was made out in those petitions.
4. Insofar as this petition is concerned, it is the case of the University of Delhi and so contended by Mr. Mohinder J.S. Rupal that the review petition has been necessitated due to discovery of new and important facts and documents which, even after exercise of due diligence were not within the knowledge of the University at the time of filing of the counter affidavit in the writ petition and also at the time of final arguments.
5. According to Mr. Rupal, the new facts which have come to the light after the relevant records were traced are the following:- On September 25, 2008, the writ petitioner applied for the post of Professor under the Career Advancement Scheme (CAS)-1998, as per applicable Rules. Her case was not considered for the reason that some of her publications were editorials and not research works required as per the requisite promotion Scheme. On December 17/18, 2008, the petitioner was informed of the non-consideration of her application for promotion. On April 10, 2012, the petitioner again applied for promotion to the post of Professor under CAS-1998 with date of eligibility being July 27, 2007. The case of the petitioner was forwarded for evaluation by three experts. It is submitted that the external experts reviewed the publications in terms of their content to ascertain the suitability of the candidate for being considered for promotion. Only on receipt of three positive reports from the Experts, would the candidate be eligible to appear for interview before the Selection Committee for promotion. In case, one of the experts gives a negative report, the case along with the publications is forwarded to a fourth expert. If the fourth expert gives a positive report, the candidate becomes eligible for appearing before the Selection Committee. However, if the fourth report is also negative, the case of the candidate is not considered and is advised to resubmit his/her work after one year. The reports of all the experts in case of the petitioner were in the negative. Her work was forwarded to a fourth expert, who also gave a negative report. On December 27, 2013, the petitioner again applied for promotion to the post of Professor under CAS-1998 with date of eligibility July 27, 2008. The petitioner was again, informed by letter dated June 17, 2014, reiterating the letter dated November 14, 2013 to re-submit the work after one year, therefore, the application was also returned. On May 29, 2017, the petitioner applied for promotion to the post of Professor with date of eligibility as August 27, 2009 under CAS-2010.
6. According to Mr. Rupal, in the aforesaid facts and circumstances, the petitioner was promoted w.e.f., June 25, 2019 by the Executive Council on the basis of recommendation made by the Selection Committee after the due assessment as per UGC Regulations,
2010.
7. It is his submission that in paragraph 18 of the order/judgment dated March 08, 2021, this Court has noted Sub Clause (c) of Clause 6.3.12 of UGC Regulation, 2010 and has observed that if a candidate does not succeed in the first assessment but succeeds in the later assessment, his/her promotion will be deemed to be from the later date of successful assessment.
8. According to him, Clause 6.0.[1] and 6.3.[3] of the UGC Regulations, 2010, empowers the Selection Committee to assess the candidate for promotion from Associate Professor to Professor. The Selection Committee in the case of petitioner, after the assessment has specifically recommended her promotion w.e.f. June 25, 2019. Moreover, UGC Regulations 1998, 2010 & 2018 all have provisions of assessment of teachers for promotion and the same is granted on the basis of the recommendations made by the Screening-cum-Evaluation Committee.
9. In substance, the plea of Mr. Rupal is that the observation of this Court that from the perusal of the minutes of the Selection Committee, it is clear that there is no conclusion of the Selection Committee that the petitioner(s) was not fit from the date of her eligibility would not be factually correct inasmuch as the petitioner was found to be not fit for being shortlisted for interview process in 2006, 2007 and 2008. According to him, the aforesaid conclusion of this Court is untenable.
10. He submits that even if the review petitioner / respondent No.1 was not able to place the material on which review is being sought, in their counter affidavit/at the time of final arguments, still nothing precluded the petitioner to place the relevant facts before the Court as she is in possession of the communications which have been sent to her. He submits that it is because the aforesaid relevant facts were not placed before this Court, that the order was passed by this Court setting aside the proceedings of the Selection Committee/ Executive Council/ Communication dated July 04, 2019 with a further direction that the promotion of the petitioner must relate back to the date of eligibility as Professor, which was found to be May 08, 2009.
11. On the other hand, Mr. Shashank Shekhar, learned counsel appearing for the writ petitioner, would submit that by way of this review petition, the review petitioner / respondent No.1 is re-agitating the issue raised in the writ petition. According to him, the grounds on which the review is being sought does not fall within the meaning of Order XLVII Rule 1 of the Code of Civil Procedure (CPC) as there is no error apparent on the face of the record. He has highlighted certain dates and events to contend that the plea that the candidature of the petitioner was considered for promotion to the post of Professor on three different occasions i.e., 2006, 2007 and 2008 and her work have not been found of appropriate level by the Expert Committee, her name was not sent for the process of interview, is totally untenable.
12. According to him, on June 20, 2010, the UGC by enacting new ‘Regulations on Minimum Qualification for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010’ also known as the Carrier Advancement Scheme, 2010, dated January 25, 2018 by virtue of Clause 1.[3] thereof, the Scheme was made applicable retrospectively w.e.f., December 31, 2008.
13. Clause 6.0.[1] of CAS-2010 stipulates that the selection procedure shall incorporate transparent, objective and credible methodology of analysis of merits and credentials of applicants based on weightage given to the performance of candidate in different dimensions and his/her performance on a Scoring System Performa based on academic performance. He does concede to the fact that the petitioner did apply for promotion to the post of Professor under CAS- 1998, w.e.f., date of eligibility i.e., July 27, 2006. He also concedes to the fact that the petitioner had applied for promotion to the post of Professor under CAS, 1998 with date of eligibility as July 27, 2007. It is also conceded that though three work experts evaluated the work of the petitioner as positive, but the fourth expert’s view was in the negative and that she was not eligible as her case was not sent for Selection Committee for assessment.
14. According to him, the UGC Regulations, 2010, modified on June 14, 2013 stipulates that the Teachers who became eligible for promotion on or after August 17, 2013 shall be governed by the provisions of CAS-2010. On December 27, 2013, the petitioner again applied for promotion to the post of Professor under CAS-1998 with due eligibility as July 27, 2008 but she was informed vide letter dated June 17, 2014 to re-submit the work after one year, therefore, this application was also returned.
15. According to Mr. Shekhar, vide letter dated April 24, 2014, a clarification was issued by the UGC stating that all interviews held after issuance of CAS-2010, shall be in accordance with the provisions of the UGC Regulations, 2010 as modified on June 14, 2013.
16. So, it is his submission that the interviews post December 31, 2018, were to be governed by CAS-2010.
17. On January 21, 2015, University of Delhi, respondent No.1, circulated an Appraisal System Performa applicable to the respondent No.2 thereby inviting application from those candidates who have fulfilled the eligibility criteria under the Regulations, meaning thereby that the applicants, who have met the criteria enumerated under CAS- 2010, will be eligible. It was upon finding herself eligible that the petitioner on May 29, 2017, applied for promotion from the post of Associate Professor to the post of Professor under CAS-2010. She had clearly mentioned in her application that the same shall be in accordance with her three years’ assessment period of May 08, 2006 to May 07, 2009. Since, she became eligible for promotion on May 08, 2009, the same should be the date of reckoning the promotion.
18. The case of the petitioner was taken by the Sub-Committee for promotion, wherein, on a positive report given by the experts, she was sent to the Screening-cum-Evaluation Committee for further evaluation. The Screening-cum-Evaluation Committee considered the case of promotion of the petitioner and gave a positive report and the same was sent to the Selection Committee for assessment. On June 25, 2019, she was called for assessment by Selection Committee who has assessed the candidature of the petitioner on the basis of the internal report received and thereafter, applied its wisdom and found the petitioner fit for promotion. It is only thereafter that the matter was sent to the Executive Council and upon its approval, the letter dated July 04, 2019 was issued.
19. He submits that the consideration of the petitioner post December 31, 2008 being under CAS, 2010, surely, her case need to be considered for promotion to the post of Professor from the date of eligibility i.e., July 27, 2006. He submits that there is no error apparent on the face of the order dated March 08, 2021. This Court had rightly in view of the change position under the regulations had directed the promotion of the petitioner from the date of eligibility.
20. Having heard the learned counsel for the parties, at the outset, I may state that the writ petition was decided by quashing the decision of the Selection Committee / Executive Council and giving promotion to the petitioner as Professor, from the date of eligibility only on the ground that the petitioner was not considered earlier, though, she had attained eligibility long back. The review petition has been filed by stating in the absence of any averments both by the petitioner and by the respondent No.1 that the petitioner had applied for promotion to the post of Professor on 3-4 occasions and on three occasion she was not found fit, the direction could not have been given. It is stated that her case was considered but as she had not met the standards to appear before the Selection Committee and in that sense she having not been found fit was not promoted earlier.
21. Suffice to state, the facts as have been highlighted by Mr. Rupal, shall not effect the conclusion arrived at in the judgment dated March 08, 2021. Even if, the petitioner had applied for promotion and considered for the years 2006, 2007 and 2008 and not found fit, still the question would be, whether the petitioner would be entitled to promotion w.e.f., May 8, 2009. In the judgment dated March 8, 2021, this Court while quashing the proceedings of the Selection Committee / Executive Council / communication dated July 04, 2019 has stated that the promotion of the petitioner shall relate back to date of the eligibility. There is no specific date given by the Court. But this Court had recorded the submission made by the counsel for the petitioner that the petitioner is eligible to the post of Professor on May 8, 2009.
22. Though, the University in the review petition has stated the fact that on May 29, 2017, the petitioner had applied for promotion to the post of Professor with the date of eligibility as August 27, 2009 under CAS-2010 but it has not revealed the outcome of the result of consideration of the petitioner for promotion for the year 2009. It is necessary to reproduce the contents of letter dated May 29, 2017 of the petitioner as under: “Date: 29.05.2017 The Joint Registrar (Teaching) University of Delhi Delhi-110007 Sub: Submission of PBAS form for Promotion under CAS 2010. Respected Sir, Please find attached herewith the PBAS form for the promotion under CAS 2010 to the post of Professor. I am an Associate Professor at Law Centre-II, Faculty of Law from 01.01.2006. My date of eligibility for promotion to the post of Professor is 01.01.2009. However, I am submitting my publications for evaluation which will shift my eligibility to 08th May 2009. I am submitting herewith six copies of PBAS Performa and five copies of five publications for evaluation. Regards, Yours sincerely Dr. Kiran Gupta Associate Professor Law Centre-II Faculty of Law Encls. As above.”
23. The letter reveals she has stated her eligibility as May 8, 2009 and not August 27, 2009 as stated by the University. Having said that, it appears that the minutes of the Selection Committee wherein, she has been recommended for promotion prospectively, i.e., 2019 was pursuant to the letter dated May 29, 2017. It is not known why the Selection Committee has recommended her case prospectively. No reasons are forthcoming for denying her promotion from 2009. The effect of promotion being given prospectively is that the petitioner is denied promotion to the post of Professor between the years 2009- 2018, which cannot be the position under Service Rules as she is required to be considered the next year following the year she was found unfit. She having been considered in 2008 and not found fit, she is required to be considered for 2009. The conclusion of the Selection Committee to give promotion from June 25, 2019 is very harsh effectively denying her the promotion for almost ten years. In that sense, this Court has rightly set aside the proceedings of the Selection Committee / Executive Council. It follows, the recommendation made by the Selection Committee of promotion must relate back from May 8, 2009.
24. In view of the above discussion, the review petition is dismissed by clarifying that the petitioner shall be entitled to promotion to the post of Professor from May 8, 2009, the date of her eligibility as depicted by her in her application form.
25. The pending applications are also dismissed as having become infructuous.
V. KAMESWAR RAO, J
SEPTEMBER 25, 2023