Hon'ble Mahesh Chandra Tripathi,J.
(Per Hon'ble M.C. Tripathi, J.)
1. Pleadings have been exchanged and with the consent of learned counsel for the parties, the matter was heard finally.
2. Dr. (Mrs.) Madhu Rani has prayed for following reliefs:-
"(i) Issue a writ, order or direction in the nature of certiorari quashing the decision in minutes of meeting of Executive Council held on 7.11.2015 to the extent of item no.10 of agenda. (Annexure no.22 to the writ petition).
(ii) Issue a writ, order or direction in the nature of certiorari quashing the Office Memo dated 10.9.2015 promoting the respondent no.4 (Dr. (Ms.) Zeba Hasan) as Professor under Career Advancement Scheme (old) in Department of Fine Arts, Aligarh Muslim University, Aligarh with effect from 4.8.2006 on the recommendation of Selection Committee held on 28.7.2015 of Aligarh Muslim University, Aligarh (contained in Annexure No.15 to the writ petition).
(iii) Issue a writ, order or direction in the nature of certiorari quashing the Office Memo dated 19.9.2015 (contained in Annexure No.14 to the writ petition).
(iv) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents (Aligarh Muslim University, Aligarh) to modify the Office Memo dated 4.9.2015 with regard to promoting petitioner as Professor so as to effect her such promotion as Professor since July, 2012 instead of 1.10.2012 (contained in Annexure No.14 to the writ petition).
(v) issue any suitable order or direction, which this Hon'ble Court may deem fit and proper under the facts and circumstances of this case.
(v) Allow the writ petition with cost in favour of petitioner."
3. Brief background of the case, as is reflected from the record, is that the petitioner was initially appointed as Lecturer in Fine Arts Section in Women's College, Aligarh Muslim University, Aligarh on substantive post on 25.11.1993 on probation for one year and she was subsequently confirmed on the said post in question on 18.12.1995. On the recommendation of the General Selection Committee, and on behalf of the Executive Council, the Vice Chancellor of Aligarh Muslim University (hereinafter referred to, as AMU) had approved the promotion of the petitioner as Reader under Career Advancement Scheme (in short, CAS) w.e.f. 26.11.2002 vide Office Memo dated 24.5.2003, and the petitioner was accorded two advance increments at the time of promotion as Reader with effect from 26.11.2002 taking into consideration her Ph.D. Degree. Subsequently, by Office Memo dated 10.3.2011, she was re-designated as Associate Professor w.e.f. 1.1.2006.
4. Dr.(Ms.) Zeba Hasan-respondent no.4 proceeded to apply for appointment on the post of Reader in Department of Fine Arts of the AMU and submitted her original form on 30.8.2004. In column-13 of the said application in question she had categorically mentioned that since 27.1.1981 to 25.5.1981 she worked as Honorary Lecturer in Agra College on temporary basis and thereafter from 27.1.1983 till submission of her application form, she worked as Reader in Sahu Ram Swarup Girls P.G. College, Bareilly. Serious allegation had been levelled against the respondent no.4 that in collusion with the official of the AMU, she had got tempered her original application and thereafter the respondent no.4 claimed that she was designated as Reader on 4.8.1998 and was working on the said post till date. She was appointed as a Lecturer on 27.1.1983 to 3.8.1998. These allegations have been made keeping in mind that the respondent no.4 had submitted her original application form with certain experience and the comparative statement was made before the Selection Committee duly signed by her wherein she claimed that she was working as Reader from 27.1.1983 till date and thereafter by means of tempering in collusion with the officials of the AMU, she was permitted to rectify as Reader since 4.8.1998 and only on the basis of her alleged claim, she had succeeded in procuring the placement in the AMU.
5. This much is also reflected from the record in question that since joining the AMU the respondent no.4 had made continuous effort to get her past services to be added to her present service as Reader in the AMU. The appointment letter dated 11.7.2006 had been issued by the AMU in favour of respondent no.4. Just to appreciate the present controversy, the same is reproduced hereinafter:-
I am directed to inform you that on the recommendation of the General Selection Committee and on behalf of Executive Council, the Vice- Chancellor in exercise of the powers vested in him under section 19 (3) of the AMU Act, 1920, has approved your appointment as Reader in Fine Arts on the post vacated Prof. Ashfaq M. Rizvi (MPS, Retired), in the Department of Fine Arts, on the salary to be fixed according to University rules in the pay scale of Rs. 12000- 18300 plus allowances as admissible under the rules on probation for a period of one year, with effect from the date you join your duties.
You will be governed by the news Defined Contribution Pension Scheme as adopted and implemented by the University vide O.M.No. LD No. (c) /148 dated 8.2.2005.
Under the University rules, you are also required to produce a physical fitness certificate from a registered Medical Graduate not below the status of Chief Medical officer or from the Chief medical officer, University Health Service, AMU.
Under the general directive of the Executive Council, you are further required to join your duties within four months from the date of issue of this Office memo, failing which the offer of appointment will be cancelled.
If you are interested for counting you past services for the purpose of retirement benefits, kindly apply on the prescribed application form obtainable from Deputy Registrar ( SB & PS) within one year from the date of joining in this University. Your request will be considered as per University rules.
Kindly intimate when you are joining your duties.
Yours faithfully Sd/ ( Abdul Majid Khan) Assistant Registrar ( Admin.)"
6. In pursuance of the aforesaid appointment letter, the respondent no.4 joined her duties as Reader in the Department of Fine Arts on 1.8.2006. By Office Memo dated 25.8.2007 the AMU had intimated to the respondent no.4 that the Vice Chancellor had confirmed her as Reader in Fine Arts, Department of Fine Arts with effect from 1.8.2007 on usual terms and conditions. Subsequently the respondent no.4 had proceeded to submit the technical resignation to the Secretary, Management Committee, Sahu Ramswarup Girls Degree College, Bareilly (previous employer) w.e.f. 1.8.2007 as she had been confirmed on the post of Reader w.e.f. 1.8.2007 in the AMU. The Deputy Registrar (SB&PS) of the AMU had proceeded to write a letter on 6.10.2007 to the Principal, Sahu Ram Swaroop Mahavidyalaya, Bareilly (previous employer of the contesting respondent) for submitting relevant papers regarding counting of her past services rendered by her from 28.1.1983 to 31.7.2006 in the said college for pensionary benefits at the AMU. The details, which have been asked, are reproduced hereinafter:-
"Madam, Dr. Zeba Hasan, Reader in the Department of Fine Arts of this University has made a request for counting of her past services rendered by her from 28.1.1983 to 31.7.2006 at your college for pensionary benefits at this University.
In this connection, I am directed to request you kindly to let us have the following information at your earliest so as to examine the request of the above name employee in the light of rules prescribed by the Government of India in this behalf.
i. A verified copy of service book of Dr. Zeba Hasan.
ii. Pay scale and the emoluments drawn by her during the period of her working in your College.
iii. Details of leave without Pay/Extra Ordinary Leave availed by her, if any.
iv. It may also be confirmed whether the institution served by the employee concerned is aided by Central/State Government and received more than 50% aid while the employee was in service.
v. Name of the scheme CPF/GPF opted by her during her previous service.
On receipt of the above information the case of Dr. Zeba Hasan for counting of past services at this University will be looked into and in case her request is found fit we shall claim from you the amount of proportionate Pro-rata Pension Liabilities for the above period of the service of Dr. Hasan.".
7. Thereafter the Deputy Registrar vide letter dated 28.1.2008 again asked the Principal, Sahu Ram Swaroop Degree College, Bareilly for remittance of amount of pro-rata retirement benefits for counting of past service of respondent no.4. As per record this much is reflected that Section Officer (Accounts), (SB&PS), Registrars office of the AMU had calculated lump-sum amount of proportionate pension liabilities i.e. capitalized value of pension & DCR Gratuity for past services rendered by the respondent no.4 as Reader at Sahu Ram Swaroop P.G. College, Bareilly. The calculations have been made on the basis of averments mentioned in para-4 of the calculation sheet i.e. service rendered in Sahu Ram Swaroop Degree College, Bareilly - 23 years 6 months 4 days (subject to maximum 20 years for pension) say 23.5 years i.e. 47 half years for DCR Gratuity. The District Inspector of Schools, Bareilly had also transmitted a sum of Rs.6,76,779/- deposited in GPF Account No.4-39 of contesting respondent no.4 to the Finance Officer of the University on 3.10.2008 and finally the State Government on 28.12.2012 had accorded sanction of the capitalized value of pension in lieu of services rendered by respondent no.4 as Reader in Sahu Ram Swaroop Girls P.G. College, Bareilly. On 24.5.2011 the respondent no.4 had requested to the Finance Officer of the AMU for fixing her salary in VIth Pay Band in the Grade Pay of Rs.9000/- w.e.f. 1st August, 2006. The letter dated 24.5.2011 reads as under:-
"Finance Officer, Aligarh Muslim University, Aligarh 24.5.2011 Madam,
I was appointed in the Department of Fine Arts in the Pay Scale of Rs.12000-420-18300 (Pre-revised). I have joined my duty in this University on 1st August 2006 (Copy enclosed-01). At the time of joining my Basic Pay was Rs.14940/- which means I have already earned 07 increments by virtue of working as Reader. I was promoted as Reader on 4th August, 1998 (Copy enclosed-02).
The Pay Revision Cell of Finance & Accounts Department has protected my pay vide R. No.520/DFA/21-11-06 (Copy enclosed-03). But it seems that Pay Revision Cell forgotten to consider my salary benefit of three years as Reader under VIth Pay Commission. It is noticeable from the above letter that on the date of joining my Basic Pay was Rs.14940/-, hence, my pay should be considered and protected in the Revised Pay Scale accordingly.
I, therefore, request you to kindly fix my salary in VIth Pay Band in the Grade Pay of Rs.9000/- w.e.f. 1st August, 2006 as I have already completed seven years as Reader on the date of joining, which is also proved from my Pay Protection Sheet (enclosed-03).
Thanking you, Sincerely yours, Sd/-
(Dr. Zeba Hasan) Reader."
8. Thereafter again on 12.8.2011 the respondent no.4 had requested to the Deputy Registrar (Teaching) of the AMU for pay fixation in VIth Pay Band in the Grade of Rs.9000/- for the period which she had rendered her services in Sahu Ram Swaroop Girls P.G. College, Bareilly i.e. from 1.1.2006 to 31.7.2006. The said request was also accorded by the AMU on 30.9.2011. The details on proforma for fixation of pay are reproduced hereinafter:-
Name of the incumbent Dr. Zeba Hasan 2 I.D. No. 17070 3 Name of the Department FINE ARTS 4 Designation (Old) Associate Professor 5 Appointed/promoted as Pay Protection 6 Existing Pay Band Existing Grade pay Rs.37400-67000 Rs.9000 7 Pay in the existing Pay Band as on the effective date of promotion/ appointment, i.e. 01.8.2006 Rs.48,960.00 8 Date of next increment in the existing Pay Band 01/07/07 9 Date of option for fixation of pay 01/08/06 10 Pay Band in which promoted/appointed Rs.37400-67000 (9000) 11 Pay proposed to be fixed as under
(a)Pay in the existing pay Band (7) as on 01.08.2006
(b) Add One Additional Increment (3% of (a)
(c) Total (a) + (b)
(d)Less Grade pay of old Post
(e)Add Grade Pay of new Post
(f) New Basic Pay as on 01.8.2006 Date of Next Increment Rs.48960 Rs.
Rs.48960 Rs.
Rs.
Rs.48960 (39960/-+9000) 01.07.2007 12 Ref. No. & Date Admin/LD/1206/T, dated 11.7.2006 2/6PC-58/1211-12/ 2011-12 dated 11.8.2011
9. This much is reflected from the Office Memo dated 10.3.2011 that the petitioner was re-designated as Associate Professor since 1.1.2006 and the respondent no.4 was re-designated as Associate Professor since 1.8.2009 on the implementation of VIth Pay Commission recommendation and the name of petitioner is placed at serial no.23 and the name of respondent no.4 is placed at serial no.378. In the aforesaid Office Memo dated 10.3.2011 it was observed that consequent upon adoption/implementation of the VIth Pay Commission recommendations, as circulated vide O.M.D. No. (C) 1839 dated 6.12.2010, the Vice Chancellor had ordered that the following Readers/Lecturers (Selection Grade) be re-designated as Associate Professors and placed them in the Pay Band IV (Rs.37400-67000) with AGP of Rs.9000 from the date as noted against each, pending consequential amendments in the relevant Statutes and the Ordinances of the AMU. The Chairman, Department of Studies and Head of the Institution were requested that in case of discrepancy, if any, pointed out by the teacher concerned and the left out case, if any, the same may please be intimated to this office for correcting/addition. The remaining Readers/Lecturers (Selection Grade) shall continue to hold the existing designation of Readers/Lecturers (Selection Grade) till such time they fulfill the eligibility conditions as per UGC Regulation 2010 duly adopted by the AMU. It has also been categorically averred in the writ petition that neither the contesting respondent no.4 had proceeded to file any objections or ratification in the said office memo nor challenged the same before the Executive Council or before any Court of law.
10. This much is also reflected from the record in question that the AMU had proceeded to initiate the process for holding a Selection Committee for the post of Professor under CAS on 24.9.2012. The petitioner had filed Writ A No.51343 of 2014 (Dr. (Mrs.) Madhu Rani vs. Aligarh Muslim University and 2 ors) with a prayer to direct the Vice Chancellor of the AMU to decide her representation/objections before finalising the length of services of contesting respondent no.4 for the purpose of her promotion under CAS in the Department of Fine Arts of the AMU. The aforesaid writ petition was disposed of on 23.9.2014 with direction to the Selection Committee to examine the representation of the petitioner before proceeding to grant any benefit to the respondent no.4 under the CAS, after affording an opportunity of hearing to the respondent no.4 but the said objection had never been dealt with. On 4.9.2015 the Deputy Registrar (Administration-T) of the AMU informed that the Vice Chancellor of the AMU, in exercise of authorization given by the Executive Council at its meeting held on 7.9.2006 under item No.14, and on the recommendation of the Selection Committee held on 28.7.2015, had approved the promotion of the petitioner as Professor under CAS (New) in the Fine Arts Section, Women's College on the salary to be fixed according to rules in the pay band of Rs.37,400-67000 with AGP of Rs.10,000/- plus allowances as admissible under the rules with effect from the date of her eligibility i.e. 1.10.2012. The Deputy Registrar (Administration-T) vide Office Memo dated 10.9.2015 also informed that on the recommendation of the Selection Committee held on 28.7.2015, the Vice Chancellor approved the promotion of respondent no.4 as Professor under CAS (Old) in the Department of Fine Arts on the salary to be fixed according to rules in the pay scale of Rs.16400-22400 plus allowance (pre-revised) as admissible under the rules with effect from 04.8.2006, the date of eligibility. The Selection Committee under CAS had proceeded to accord professorship to the petitioner on 1.10.2012, whereas taking into consideration the past services rendered by respondent no.4, the Selection Committee had awarded the professorship to the respondent no.4 w.e.f. 4.8.2006.
11. By Office Memo dated 19.9.2015, the respondent no.4 had been appointed as Chairman, Department of Fine Arts for a period of three years with immediate effect. Aggrieved with the aforesaid, the petitioner filed Writ A No.54897 of 2015 (Dr. (Mrs.) Madhu Rani vs. Aligarh Muslim University & 3ors) and a Division Bench of this Court disposed of the said writ petition on 24.9.2015 with liberty to the petitioner to file an appeal before the appellate authority within two weeks and on such appeal being filed, the appellate authority shall consider and decide the same by means of a reasoned speaking order, after affording opportunity of hearing to respondent no.4, preferably within eight weeks thereafter. Immediately thereafter the petitioner preferred the appeal before the Executive Council of the AMU under Section 36-B of Aligarh Muslim University Act (in short, the AMU Act) on 6.10.2015 and the Executive Council rejected the appeal on 7.11.2015, which was served on the petitioner on 30.11.2015.
12. Shri Ashok Khare, Senior Advocate assisted by Shri Divakar Rai Sharma, learned counsel for the petitioner vehemently submitted that the decision so taken by the Selection Committee under CAS dated 28.7.2015 cannot sustain in the aforementioned facts and circumstances. Admittedly, the petitioner was appointed as Lecturer against substantive post in the year 1993 and thereafter, promoted as Reader under CAS in the year 2002, whereas in pursuance of the appointment letter dated 11.7.2006, the respondent no.4 joined the AMU on 1.8.2006 against the cadre post as Reader. He has also drawn attention of the Court on Office Memo dated 10.3.2011, wherein the University had adopted/implemented the VIth Pay Commission recommendation and the same was duly accorded approval by the Vice Chancellor of the AMU. The Vice Chancellor re-designated the petitioner as well as contesting respondent no.4 as Associate Professor in the Pay Band of Rs.37400-67000 with AGP of Rs.9000/-. The said benefit had been extended in favour of petitioner w.e.f. 1.1.2006 and she was placed at serial no.23, whereas contesting respondent was given the said benefit w.e.f. 1.8.2009 and she had been placed at serial no.378. The said Office Memo proceed to mention that in case incumbents find any discrepancy in fixation/re-designation, the objection could be filed, but at no point of time the contesting respondent had proceeded to file any objection and as such, the same had attained finality. In this backdrop it has been urged that the acquiescence being the principle of equity must be made applicable in the case, where the order had been complied with without raising any objection, consequently estoppel will follow acquiescence. He has placed reliance on the judgements of Hon'ble Apex Court in Pannalal Binjraj vs. Union of India AIR 1957 SC 397 and Manak Lal v. Dr. Prem Chand Singhvi AIR 1957 SC 425.
13. Learned counsel for the petitioner further made submission that while giving an opportunity of hearing to the contesting respondent, the AMU had categorically informed to her that her past services would only be counted towards length of service for according pensionary benefit. Once the petitioner was promoted under CAS as Reader in the year 2002 and the contesting respondent had joined the AMU on a cadre post as Reader on 1.8.2006, as such by no stretch of imagination the contesting respondent could be conferred seniority over the petitioner under the CAS at the time of giving professorship in the year 2015. It has also been urged that the post of Reader/Professor under the U.P. State Universities Act, 1973 is an ex-cadre post and once there is no corresponding amendment in the State Universities Act, 1973 providing for appointment of Lecturer by way of promotion under CAS on the post of Reader in affiliated Colleges and as such, there is no cadre of Reader/Professor is available in the Degree College and as such, her past services, which she rendered in Degree College as Reader, which is Ex-Cadre post and governed under U.P. State Universities Act, 1973 and such conferment by the AMU is in teeth of judgements rendered by this Court in Kedar Nath Singh vs. State of UP and ors 2008 (6) ADJ 372 (DB) and Writ A No.62753 of 2015 (Amrit Prasad vs. State of UP & 5 ors) decided on 16.11.2015. He submitted that in Kedar Nath Singh vs. State of UP and ors (supra) the Division Bench of this Court had considered the post of Reader/Professor under the U.P. State Universities Act, 1973 and held that the post of Reader is an ex-cadre post and there is no corresponding amendment in the State Universities Act providing for appointment of Lecturers by way of promotion under CAS on the post of Reader in affiliated Degree College and there is, in fact, no cadre of Reader in the Degree Colleges. The Division Bench had proceeded to observe in paras 38 to 45 as follows:-
"38. In view of the aforesaid settled legal position, as explained by the Hon'ble Supreme Court and there being no corresponding amendment in the State Universities Act providing for appointment of Lecturers by way of promotion under career advancement scheme on the post of Reader in affiliated Degree College and there in fact being no cadre of Reader in the Degree Colleges, we have no hesitation to hold that the designation of Reader under the career advancement scheme as per the Government Orders dated 10.9.1987 and dated 7.1.1989 is only an ex-cadre promotion and on the basis of such ex-cadre promotions no right accrues in favour of the persons so promoted to claim to be a member of the cadre of Reader/Professor contemplated by the Act and the Statutes/Ordinances of the University. The provisions of Statutes 18.10 and 18.16 and 18.05 have to be interpreted in like manner.
39. Section 31-A as added to the U.P. State Universities Act provides for personal promotion to the post of Reader and Professor in the case of University teachers only and reads as follows:-
"31-A Personal promotion to Teachers of University-(1) Notwithstanding anything to the contrary contained in any other provision of the Act, a Lecturer in the University appointed under Section 31, or a Reader in the University appointed under Section 31 or promoted under this Section, who has put in such length of service and possesses such qualifications, as may be prescribed, may be given personal promotion, respectively to the post of Reader or Professor.
(2) Such personal promotion shall be given on the recommendation of the Selection Committee, constituted under clause (a) of sub-section (4) of Section 31, in such manner and subject to such conditions as may be prescribed.
(3) Nothing contained in this section shall affect the posts of the teachers of the University to be filled by direct appointment in accordance with the provisions of Section 31."
40. The section was added by U.P. Act No. 9 of 1985 and further amendments in the said Section 31-A were made by Parliament Act No. 4 of 1996. The scheme for personal promotion of Lecturers working in Degree Colleges had already been enforced, yet the legislature has not made any corresponding amendment conferring similar benefit, for promotion by career advancement in favour of Lecturers of affiliated Degree Colleges, under the U.P. State Universities Act. In absence of any statutory provision in the parent Act providing for such promotion by way of career advancement and further there being no amendments in the First Statutes and Ordinances of the University providing for qualification/experience for the post of Readers in Degree College, the judgment in the case of Rashmi Srivastava would apply with full force to the Lecturers, who have been granted personal promotion as Reader in terms of the Government Orders only. The legal principles, as explained in the case of Bal Krishna Agarwal and Suman Agarwal (supra) have also to be applied accordingly.
41. We hold that the provisions of Statute 18.16, when it makes the provisions of Statute 18.05 mutatis mutandis applicable to the teachers of recognized Degree Colleges, it only means that the seniority has to be determined with reference to the appointments made against cadre post only as has been explained by the Hon'ble Supreme Court.
42. We may further clarify that in none of the judgment of this Court referred to by the counsel for the petitioner i.e. Anirudh Pradhan v. State of U.P. as well as Anirudh Pradhan v. Chancellor, Purvanchal University, Jaunpur, (2001 All LJ 1505), the judgments of the Hon'ble Supreme Court in the cases of Dr. Rashmi Srivastava, ((1995) 3 SCC 653 : AIR 1995 SC 1694) (supra), Dr. Bal Krishna Agarwal, (1995 All LJ 454) (supra) and Dr. Suman Agarwal, (1996 All LJ 429) (supra), which had already seen the light of the day, had been taken note of and therefore in absence of legal position settled by the Hon'ble Supreme Court, having been considered the same, need not be followed. Moreover, the law laid down by the Hon'ble Supreme Court has to prevail in view of the Article 141 of the Constitution of India.
43. In view of the aforesaid, there is no illegality in the Government Order dated 11th September, 2006, inasmuch as it only explains the legal position, as has been settled by the Hon'ble Supreme Court of India.
44. We hold that the order of the Vice-Chancellor, in so far as he declares respondent No. 5 as senior to the petitioner only because of his having been promoted as Reader under the career advance scheme provided for under the Government Order, is legally not sustainable and is hereby quashed, The Vice-Chancellor is directed to re-determine the seniority of the teachers of the affiliated Degree Colleges strictly in accordance with their length of service put in as Lecturer on substantive basis against cadre post irrespective of designation of Reader having been granted under the Government Orders dated 10-9-1987 and dated 7-1-1989 as amended from time to time. The aforesaid exercise shall be completed within a period of six weeks from the date a certified copy of this order is filed before the Vice-Chancellor.
45. With the aforesaid observations/directions the present writ petition is allowed."
14. Learned counsel for the petitioner also highlighted certain maneuvering and discrepancies in original record of Ref. No.4 regarding her past experience and placed reliance at page 66 of the paper book where it was disclosed that she worked as Reader in Sahu Ram Swaroop Girls P.G. Colleges, Bareilly since 27.1.1983 till date whereas at page 81 of the paper book in column Designation & period, subsequently the rectification had been made through arrow against Reader from 4.8.98 to till date in place of 27.1.83 to till date and against Lecturer from 27.1.83 to 3.8.98 in place of 4.8.98 to 3.8.98. He submitted that the decision so taken by the Selection Committee under CAS is unsustainable in the light of UGC Regulations 2010 and the amended Regulation 2013. The alleged promotion of contesting respondent as Professor under the CAS on 10.9.2015 with effect from 4.8.2006 is in teeth of UGC Regulations 2010, wherein extensive methodology has been provided by the UGC wherein exhaustive procedures and API score are essential requirement for promotion under the CAS and as such, it was incumbent on the Selection Committee under CAS to proceed in consonance of Regulation 2010. Reliance has been placed on Paras 6.2.0, 6.3.0 and 6.3.1 of UGC Regulations 2010. In the present matter no such exercise was undertaken by the AMU at the time of CAS promotion and as such AMU had deliberately given a go-bye to these provisions while conferring CAS promotion to the contesting respondent. As such CAS recommendations cannot be sustained, consequently the conferment of professorship in favour of respondent no.4 with effect from 4.8.2006 is in teeth of the said provisions, and as entire selection proceeding qua the contesting respondent is unsustainable and liable to be quashed.
15. Shri Ikram Ahmad, learned counsel appearing for the AMU has submitted that the respondent no.4 joined as Reader in Department of Fine Arts of the AMU on 1.8.2006 and thereafter applied for promotion to the post of Professor under CAS. As per letter dated 5.3.2004 her past services as Reader at Sahu Ram Swarup Girls P.G. College, Bareilly were taken into consideration for determining her eligibility for Professor under CAS and as such, her eligibility as Professor has been fixed w.e.f. 4.8.2006. Many times the petitioner questioned the eligibility of the respondent no.4 and the issues raised by her were thoroughly examined by the AMU. After considering and verifying complete record, the then Registrar/Vice Chancellor only approved the said recommendation, as such there is no need for any further enquiry and consequently matter must be treated as closed.
16. He further made submission that the Selection Committee under CAS after affording an opportunity to the petitioner only thereafter made recommendation of Professorship in favour of respondent No.4 w.e.f. 4.8.2006 taking into account her past services and as such she is senior to the petitioner and accordingly, she was given charge of Chairman, Department of Fine Arts for a period of three years vide Office Memo dated 19.9.2015. He further made submission that the Executive Council of AMU had also considered the appeal of the petitioner and rejected as such it has been urged that the action of AMU is fully justified and liable to be upheld.
17. Shri R.K. Ojha, Senior Advocate assisted by Shri Sheikh Obaidullah, learned counsel appearing for the respondent no.4 has vehemently opposed the writ petition and submitted that the respondent no.4 was initially appointed as Lecturer in Sahu Ram Swaroop Girls P.G. College, Bareilly on 27.1.1983 and thereafter she was given the designation of Reader and accordingly paid on ex-cadre post as per provisions of UGC since 4.8.1998. Thereafter, she had applied for the post of Reader at AMU and finally got an appointment on the post of Reader in the AMU on 1.8.2006. Immediately, thereafter she moved an application for counting her previous services strictly as per the provisions contained in the AMU Act and consequently the previous employer had also transmitted the GPF and other contributions to the AMU. As such, there was no infirmity or illegality in according promotion under CAS as Professor after completion of 8 years as Reader. At no point of time the respondent no.4 had furnished any incorrect information or concealed any material fact and being as senior-most Professor in the department, the AMU had rightly proceeded to hand over charge to her as Chairman of the Fine Arts Department. In the catena of decisions Hon'ble Apex Court and this Court have taken decision that previous services are liable to be added and accordingly all the financial upgradation is liable to be accorded to her. Therefore, at this stage, no indulgence is required and the writ petition is liable to be dismissed.
18. Heard rival submissions and perused the record.
19. As per letter of appointment dated 11.7.2006 this much is reflected that on the recommendation of the General Selection Committee and on behalf of the Executive Council, the Vice Chancellor in exercise of powers vested in him under Section 19 (3) of the AMU Act 1920, had approved the appointment of respondent no.4 as Reader in Fine Arts in the pay scale of Rs.12000-18300. As per appointment letter this much is reflected that in case she is interested for counting her previous services for the purpose of retirement benefits, kindly apply on the prescribed application form obtainable from Deputy Registrar (SB & PS) within one year from the date of joining in this University and her request will be considered as per University rules.
20. In order to appreciate the controversy involved, it is necessary to look into the relevant Statute of the AMU dealing with the subject viz. Statute 61(6)(iv), which is reproduced below:-
"Statute 61 (6) (iv):- The University employees who have already been sanctioned or received pro-rata retirement benefits for their past service from their previous employer mentioned in sub-clause (i) and (ii) will have the option either :
a. to retain such benefits and in that event their past service will not qualify for pension or other retirement benefits in the University, or b. to have the past service counted as qualifying service for pension in the University in which case the pro-rata retirement benefits or their terminal benefits if already received by them will have to be deposited along with interest thereon (at such rate and in such manner as may be prescribed by the Executive Council) from the date of receipt of those benefits till the date of deposit with the University. The right to count previous service shall not revive until the whole amount has been refunded. In other cases where pro-rata retirement benefits have not been drawn the previous authority shall make the payment to the University.
c. The option under this clause shall be exercised within a period of one year. If no option is exercised by such employees within the prescribed time limit they will be deemed to have opted for retention of the benefits already received by them. The option once exercised will be final.
d. Where no terminal/retirement benefits have been received, previous service will be counted as qualifying service for retirement benefits under the University rules only if the previous employer accepts the pension liability for the service in accordance with the principles laid down in this clause. In no case pension contribution/liability shall be accepted from the employee concerned.
v. Provisions of the above amendments will be applicable only where the transfer of the employees from the other organization to the University and vice versa was/is with the consent of that organization including the cases where the individual had secured employment directly on his own volition provided he had applied through proper channel with the permission of the administration/authority concerned."
21. The Executive Council of the AMU amended Rule 6A of the General Rules and Regulation of the Council relating to sanction for payment of pension and gratuity on 29.3.1989 and the amended provision reads as under :
"Rule 6A Condonation of interruption in service for determining pensionary benefits :
a. In the absence of a specific order of the appointing authority to the contrary, an interruption between two spells of service rendered by a University employee, shall be treated as automatically condoned, and pre-interruption service treated as qualifying service;
b. Nothing in Clause (a) shall apply to interruption caused by dismissal or removal from service, or by resignation from service;
c. The period of interruption referred to in Clause (a) shall not count as qualifying service."
22. A perusal of Statute 61(6) (iv) would show that two options are open to an employee of the AMU who has rendered service in some other institution or university prior to joining the AMU. The first option is that the employee, who has already received retirement benefits for his past service from his previous employer, may retain such benefits and in that event his past service shall not qualify for pension and other retirement benefits in the AMU. The second option is that the employee will have to deposit with the AMU the retirement or terminal benefits along with interest with the AMU and this has to be done within one year of joining the AMU. If the second option is not exercised within prescribed time viz. one year, the employee shall be deemed to have opted for the first option viz. for retention of the benefits already received by him and in such a case the past service rendered by him shall not be counted. Statute 61 (6) (v) lays down that the aforesaid provision will be applicable only where the transfer of the employee from other organization to the AMU or vice-versa is with the consent of that organization including a case where the employee has secured employment on his own volition provided he has applied through proper channel and with the permission of the administration/authority concerned. Rule 6A of the General Rules and Regulations of the Council relating to sanction of payment of pension and gratuity indicates that in absence of a specific order of the appointing authority to the contrary, an interruption between two spells of service rendered by a AMU employee shall be treated as automatically condoned and past service shall be treated as qualifying service. However, this clause will not apply in case of resignation from service.
23. Sub-clause (c) of Statute 61(6)(iv) lays down that the option under this clause shall be exercised within a period of one year and if no option is exercised within the prescribed limit, the employee shall be deemed to have opted for retention of the benefits already received by him. This clause provides for the consequences which will ensure in the event of non-exercise of option within the prescribed period of one year. The said clause is mandatory in nature. The provisions of sub-clause (c) of Statute 61(6)(iv) should be interpreted in a manner which makes the provision workable and not redundant or otiose.
24. After joining the AMU the contesting respondent had proceeded as per provisions contained in Statute 61.6 (iv) of the AMU Act for counting her previous services, which she had rendered at Sahu Ram Swaroop Girls P.G. College, Bareilly. Consequently requisite amount had been transferred by the previous employer to the AMU. The amount of pro-rata pension of Rs.12,68,820/- was accorded approval by the State Government with concurrence of His Excellency Governor and accordingly, the capitalised value of pension & DCR Gratuity for the past services rendered by the respondent no.4 as Reader at Sahu Ram Swaroop Girls P.G. College, Bareilly was sanctioned by the State Government on 28.12.2012 and finally an amount of Rs.13,29,780/- was transmitted by the Finance Officer (Higher Education), Allahabad to the AMU vide letter dated 31.12.2015. Thereafter, nothing has been brought on record to indicate that at any point of time the Vice Chancellor or the Executive Council of the AMU had ever proceeded to accord any approval in this regard.
25. It is further relevant to indicate that the Division Bench of this Court in Kedar Nath Singh (supra) and Amrit Prasad (supra) had clearly proceeded to observe that the post of Reader/Professor under UP State Universities Act, 1973 is an ex-cadre post. In absence of any statutory provision in the Act of 1973 providing for such promotion by way of CAS and further, if there was no amendments in the First Statute and the Ordinances of the AMU providing for qualifications/experience for the post of Reader in Degree College, the judgement in Dr. Rashmi Srivastava vs. Vikram University AIR 1995 SC 1694 would apply with full force to the Lecturers, who had been granted personal promotion as Reader in terms of the Government order. Once this is the factual situation, then we are also of the opinion that the contesting respondent had worked at Sahu Ram Swarup Girls P.G. College, Bareilly as Reader against the ex-cadre post and initially the AMU had rightly proceeded while issuing the appointment letter for counting of her previous services towards the pensionary benefit. Even though what we find that at the time of joining at AMU, the contesting respondent had also been given pay protection, consequently we hold that the judgements in Kedar Nath Singh (supra) and Amrit Prasad (supra) would definitely hold the field and as such her previous services would only be liable to be added towards her pensionary benefit.
26. Once the Vice Chancellor of AMU vide order dated 10.3.2011 had proceeded to re-designate the petitioner as well as contesting respondent as Associate Professor with effect from 1.1.2006 and 1.8.2009 respectively and the said benefit had also been extended by the Vice Chancellor of AMU after enactment of UGC Regulations 2010, and once the contesting respondent had not proceeded to file any objections regarding such designation, then for all practical purposes the same had attained finality. Therefore, we are of the considered opinion that once the contesting respondent had accepted the order dated 10.3.2011 passed by the Vice Chancellor of AMU without any resentment or objection, the principle of estoppel definitely follows the acquiescence.
27. In Pannalal Binjraj vs. Union of India AIR 1957 SC 397 a Constitution Bench of the Supreme Court had explained the scope of estoppel observing that once an order is passed against a person and without raising any objection he submits to the jurisdiction or complies with such order, he cannot be permitted to challenge the said order merely because he could not succeed there, for the reason that such conduct of that person would disentitle him for any relief before the Court.
28. In Manak Lal v. Dr. Prem Chand Singhvi AIR 1957 SC 425 Hon'ble Apex Court held that it is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question. In this judgment, Supreme Court relied on English decision in Vyvyan v. Vyvyan (1861) 30 Beav 65 = 54 ER 813 wherein it has been held that "Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim." A similar view has been reiterated by the Supreme Court in Maharashtra State Road Transport Corporation vs. Balwant Regular Motor Service, Amravati AIR 1969 SC 329.
29. In State of Punjab v. Krishan Niwas, AIR 1997 SC 2349 the Hon'ble Apex Court examined a case where the services of the employee were terminated in exercise of the powers under Article 311 (2) (b) of the Constitution. The Appellate Court reduced the punishment imposed by the trial court. In the Departmental Appeal, the order of dismissed was also converted into that of a lesser punishment. The employee had acted upon it and joined the post. He was held not entitled to challenge the reduced punishment as principle of estoppel/acquiescence was attracted.
30. In M/s. Power Control Appliances & Ors. Vs. Sumeet Machines Pvt. Ltd., (1994) 2SCC 448 the Apex Court held as under:-
"Acquiescence is sitting by, when another is invading the rights.... It is a course of conduct inconsistent with the claim... It implies positive acts; not merely silence or inaction such as involved in laches. The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant..."
"Acquiescence, in fact, is sitting by, when another is invading the rights. The acquiescence must be such as to lead to the inference of the license sufficient to create rights in other party...the question of waiver could not arise against the person who is not a party to the case as such person has no opportunity to raise the issue of bias.
31. Inaction in every case does not lead to an inference of implied consent or acquiescence as has been held by the Apex Court in P. John Chandy & Co. (P) Ltd v. John P. Thomas AIR 2002 SC 2057. Thus, the Court has to examine the facts and circumstances in an individual case. In Municipal Corporation of Greater Bombay vs. Hakimwadi Tenants' Assn. AIR 1988 SC 233 it was held by Hon'ble Supreme Court that in order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case.
32. What we find from the record that instead of passing final order for counting previous services of contesting respondent towards pensionary benefit, a noble device was adopted by AMU and in the garb of Selection Committee, which was constituted for promotion under CAS had proceeded to count her previous services as Reader (ex-cadre post) towards seniority as Reader and accorded promotion as Professor since 4.8.2006 vide order dated 10.9.2015. This is also surprising that once the Vice Chancellor of the AMU vide order dated 10.3.2011 had already re-designated the petitioner as well as contesting respondent as Associate Professor with effect from 1.1.2006 and 1.8.2009 respectively, then how the Selection Committee, which has been constituted for promotion under CAS for professorship could recommend the contesting respondent as Professor since 4.8.2006 much prior to re-designation of contesting respondent as Associate Professor w.e.f. 1.8.2009.
33. It would be relevant to look into the UGC Regulations 2010, which is known as University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulation, 2010 (in short the UGC Regulations 2010). As per law laid down by this Court in Writ A No.62753 of 2015 (Amrit Prasad vs. State of UP & 5 ors) decided on 16.11.2015 the said UGC Regulations 2010 are applicable to all Central Universities and as such, the same is fully applicable to the Aligarh Muslim University.
34. It is relevant to indicate that as per UGC Regulations 2010 for every selection i.e. under direct recruitment or under CAS, paras 4.1.0, 6.1.0, 6.2.0, 6.3.0, 6.3.1, 6.4.7, 6.4.8 etc. of the UGC Regulations 2010 are to be adhered. The relevant provisions are extracted as under:-
"4.1.0 PROFESSOR A. (i) An eminent scholar with Ph.D. qualification(s) in the concerned/allied/relevant discipline and published work of high quality, actively engaged in research with evidence of published work with a minimum of 10 publications as books and/or research/policy papers.
(ii) A minimum of ten years of teaching experience in university/college, and/or experience in research at the University/National level institutions/industries, including experience of guiding candidates for research at doctoral level.
(iii) Contribution to educational innovation, design of new curricula and courses, and technology - mediated teaching learning process.
(iv) A minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS), set out in this Regulation in Appendix III.
OR B. An outstanding professional, with established reputation in the relevant field, who has made significant contributions to the knowledge in the concerned/allied/relevant discipline, to be substantiated by credentials."
"6.1.0 While the API:
(a) Tables I and III of Appendix III are applicable to the selection of Professors/Associate Professors /Assistant Professors in universities and colleges;
(b) Tables IV, V and VI of Appendix III are applicable to Directors/ Deputy Directors/Assistant Directors of Physical Education and Sports; and
(c) Tables VII, VIII and IX of Appendix III are applicable to Librarians/ Deputy Librarians and Assistant Librarians for both direct recruitment as well as Career Advancement Promotions, the ratio / percentage of minimum requirement of category-wise API Score to each of the cadres shall vary from those for university teachers and for UG/PG College Teachers, as given in these Tables of Appendix-III.
6.2.0 The minimum norms of Selection Committees and Selection Procedures as well as API score requirements for the above cadres, either through direct recruitment or through Career Advancement Schemes Regulations, shall be similar. However, since teachers recruited directly can be from different backgrounds and institutions, Table II(c) of Appendix III provides norms for direct recruitment of teachers to different cadres, while Tables II (a) and Table II(b) provide for CAS promotions of teachers in universities and colleges respectively, which accommodate these differences.
6.3.0 In order to remedy the difficulties of collecting retrospective information and to facilitate the implementation of these regulations from 31-12-2008 in the CAS Promotion, the API based PBAS will be progressively and prospectively rolled out. Accordingly, the PBAS based on the API scores of categories I and II as mentioned in these tables is to be implemented for one year, initially based on the existing systems in universities /colleges for one year only with the minimum annual scores as depicted in Table II (a) and II (b) for university and college teachers, or by Librarian/Physical Education and Sports cadres as depicted in Tables V(a) and V (b), Tables VIII(a) and VIII (b) respectively. This annualized API scores can then be compounded progressively as and when the teacher becomes eligible for CAS promotion to the next cadre. Thus, if a teacher is considered for CAS promotion in 2010, one year API scores for 2009-10 alone will be required for assessment. In case of a teacher being considered for CAS promotion in 2011, two years average of API scores for these categories will be required for assessment and so on leading progressively for the complete assessment period. For Category III (research and academic contributions), API scores for this category will be applied for the entire assessment period.
6.3.1 A teacher who wishes to be considered for promotion under CAS may submit in writing to the university/college, with three months in advance of the due date, that he/she fulfils all qualifications under CAS and submit to the university/college the Performance Based Appraisal System proforma as evolved by the concerned university duly supported by all credentials as per the API guidelines set out in these Regulations. In order to avoid delays in holding Selection Committee meetings in various positions under CAS, the University/College should immediately initiate the process of screening/selection, and shall complete the process within six months from the date of application. Further, in order to avoid any hardships, candidates who fulfill all other criteria mentioned in these Regulations, as on 31 December, 2008 and till the date on which this Regulation is notified, can be considered for promotion from the date, on or after 31 December, 2008, on which they fulfill these eligibility conditions, provided as mentioned above.
6.3.2 Candidates who do not fulfill the minimum score requirement under the API Scoring System proposed in the Regulations as per Tables II(a and b) of Appendix III or those who obtain less than 50% in the expert assessment of the selection process will have to be re-assessed only after a minimum period of one year. The date of promotion shall be the date on which he/she has successfully got re-assessed.
6.3.3 The Selection Committee specifications as delineated in Clauses 5.1.0 to 5.1.7 are applicable to all direct recruitments of Faculty Positions and Career Advancement promotions of Assistant Professor to Associate Professor and to that of Associate Professor to Professor.
6.3.4 CAS promotions from a lower grade to a higher grade of Assistant Professor shall be conducted by a "Screening cum Evaluation Committee" adhering to the criteria laid out as API score in PBAS in the Tables of Appendix-III.
6.3.5 The "Screening cum Evaluation Committee" for CAS promotion of Assistant Professors/equivalent cadres in Librarians/Physical Education from one AGP to the other higher AGP shall consist of:
6.3.5.1. For University teachers:
a. The Vice Chancellor as the Chairperson of the Selection Committee;
b. The Dean of the concerned Faculty;
c. The Head of the Department /Chairperson of the School; and d. One subject expert in the concerned subject nominated by the Vice Chancellor from the University panel of experts.
6.3.5.2 For College teachers:
a. The Principal of the college;
b. Head of the concerned department from the college;
c. Two subject experts in the concerned subject nominated by the Vice Chancellor from the university panel of experts;
6.3.5.3 The quorum for these committees in both categories mentioned above shall be three including the one subject expert/ university nominee need to be present.
6.3.6 The Screening cum Evaluation Committee on verification/evaluation of API score secured by the candidate through the ''PBAS' methodology designed by the respective university based on these Regulations and as per the minimum requirement specified:
(a) in Tables II and III for each of the cadre of Assistant Professor; (b) in Tables V and VI for each of the cadre of Physical Education and Sports; and (c) in Tables VIII and IX for each of the cadre of Librarians shall recommend to the Syndicate/ Executive Council /Board of Management of the University about the suitability for the promotion of the candidate(s) under CAS for implementation.
6.3.7 All the selection procedures outlined above, shall be completed on the day of the selection committee meeting, wherein the minutes are recorded along with PBAS scoring proforma and recommendation made on the basis of merit and duly signed by all members of the selection committee in the minutes.
6.3.8 CAS promotions being a personal promotion to the incumbent teacher holding a substantive sanctioned post, on superannuation of the individual incumbent, the said post shall revert back to its original cadre.
6.3.9 The incumbent teacher must be on the role and active service of the Universities/Colleges on the date of consideration by the Selection Committee for Selection/CAS Promotion.
6.3.10 Candidates shall offer themselves for assessment for promotion, if they fulfill the minimum API scores indicated in the appropriate API system tables by submitting an application and the required PBAS proforma. They can do so three months before the due date if they consider themselves eligible. Candidates who do not consider themselves eligible can also apply at a later date. In any event, the university concerned shall send a general circular twice a year calling for applications for CAS promotions from eligible candidates.
6.3.11 In the final assessment, if the candidates do not either fulfill the minimum API scores in the criteria as per PBAS proforma or obtain less than 50% in expert assessment, wherever applicable, such candidates will be reassessed only after a minimum period of one year.
6.3.12 (a) If a candidate applies for promotion on completion of the minimum eligibility period and is successful, the date of promotion will be from that of minimum period of eligibility.
(b) If, however, the candidates find that he/she fulfills the eligibility conditions at a later date and applies on that date and is successful, his/her promotion will be effected from that date of application fulfilling the criteria.
(c) If the candidate does not succeed in the first assessment, but succeeds in the eventual assessment, his/her promotion will be deemed to be from the later date of successful assessment.
6.4.0. STAGES OF PROMOTION UNDER CAREER ADVANCEMENT SCHEME OF INCUMBENT AND NEWLY APPOINTED ASSISTANT PROFESSORS/ ASSOCIATE PROFESSORS/PROFESSORS 6.4.1. Entry level Assistant Professors (Stage 1) would be eligible for promotion under the Career Advancement Scheme (CAS) through two successive stages (stage 2 and Stage 3), provided they are assessed to fulfill the eligibility and performance criteria as laid out in Clause 6.3. of this Regulation.
6.4.2. An entry level Assistant Professor, possessing Ph. D. Degree in the relevant discipline shall be eligible, for moving to the next higher grade (stage 2) after completion of four years service as Assistant Professor.
6.4.3. An entry level Assistant Professor possessing M.Phil. Degree or post-graduate Degree in professional courses, approved by the relevant statutory body, such as LL.M. / M. Tech., etc. shall be eligible for the next higher grade (stage 2) after completion of five years service as Assistant Professor.
6.4.4. An entry level Assistant Professor who does not have Ph.D. or M.Phil, or a Master's Degree in the relevant professional course, shall be eligible for the next higher grade (stage 2) only after completion of six years service as Assistant Professor.
6.4.5. The upward movement from the entry level grade (stage 1) to the next higher grade (stage 2) for all Assistant Professors shall be subject to their satisfying the API based PBAS conditions laid down by the UGC in this Regulation.
6.4.6. Assistant Professors who have completed five years of service in the second grade (stage 2) shall be eligible, subject to meeting the API based PBAS requirements laid down by these Regulations, to move up to next higher grade (stage 3).
6.4.7. Assistant Professors completing three years of teaching in third grade (stage 3) shall be eligible, subject to the qualifying conditions and the API based PBAS requirements prescribed by these Regulations, to move to the next higher grade (stage 4) and to be designated as Associate Professor.
6.4.8. Associate Professor completing three years of service in stage 4 and possessing a Ph.D. Degree in the relevant discipline shall be eligible to be appointed and designated as Professor and be placed in the next higher grade (stage 5), subject to (a) satisfying the required credit points as per API based PBAS methodology provided in Table I-III of Appendix IV stipulated in these Regulations, and (b) an assessment by a duly constituted selection committee as suggested for the direct recruitment of Professor.
Provided that no teacher, other than those with a Ph.D., shall be promoted or appointed as Professor.
6.4.9. In the case of Associate Professors in Colleges, promotion to the post of Professor under CAS shall be further subject to Clause 6.5.1.and 6.5.2 of this Regulation.
35. It is relevant to indicate that APPENDIX-I of UGC Regulations 2010 relating to appointment of Associate Professor and Professor is also attracted in the matter and the same is quoted hereinafter:-
"2. Revised Pay Scales, Service conditions and Career Advancement Scheme for teachers and equivalent positions:
The pay structure for different categories of teachers and equivalent positions shall be as indicated below:-
( a) Assistant Professor / Associate Professors / Professors in Colleges & Universities (i) Persons entering the teaching profession in Universities and Colleges shall be designated as Assistant Professors and shall be placed in the Pay Band of Rs.1560039100 with AGP of Rs,6000. Lecturers already in service in the pre-revised scale of Rs. 8000-13500, shall be redesignated as Assistant Professors with the said AGP of Rs. 6000.
(ii) An Assistant Professor with completed service of 4 years, possessing Ph.D Degree in the relevant discipline shall be eligible, for moving up to AGP of Rs. 7000.
(iii) Assistant Professors possessing M.Phil degree or post-graduate degree in professional courses approved by the relevant Statutory Body, such as LL.M/M.Tech etc. shall be eligible for the AGP of Rs. 7,000 after completion of 5 years service as Assistant Professor.
(iv) Assistant Professors who do not have Ph.D or M.Phil or a Master's degree in the relevant Professional course shall be eligible for the AGP of Rs. 7,000 only after completion of 6 years' service as Assistant Professor.
(v) The upward movement from AGP of Rs. 6000 to AGP of Rs. 7000 for all Assistant Professors shall be subject to their satisfying other conditions as laid down by the UGC.
(vi) The pay of the incumbents to the posts of Lecturer (senior scale) (i.e. the unrevised scale of Rs. 10,000-15200) shall be re-designated as Assistant Professor, and shall be fixed at the appropriate stage in Pay Band of Rs.15600-39100 based on their present pay, with AGP of Rs. 7000.
(vii) Assistant Professors with completed service of 5 years at the AGP of Rs. 7000 shall be eligible , subject to other requirements laid down by the UGC, to move up to the AGP of Rs.788000.
(viii) Posts of Associate Professor shall be in the Pay Band of Rs.37400-67000, with AGP of Rs.9000. Directly recruited Associate Professors shall be placed in the Pay Band of Rs. 37400-67000 with an AGP of Rs. 9000, at-the appropriate stage in the Pay Band in terms of the conditions of appointment.
(ix) Incumbent Readers and Lecturers (Selection Grade) who have completed 3 years in the current pay scale of Rs. 12000-18300 on 1.1.2006 shall be placed in Pay Band of Rs. 37400- 67000 with AGP Pay of Rs . 9000 and shall be re-designated as Associate Professor.
(x) Incumbent Readers and Lecturers (Selection Grade) who had not completed three years in the pay scale of Rs. 12000-18300 on 1.1.2006 shall be placed at the appropriate stage in the Pay Band of Rs. 15600-39100 with AGP of Rs. 8000 till they complete 3 years of service in the grade of Lecturer (Selection Grade)/Reader, and thereafter shall be placed in the higher Pay Band of Rs.37400-67000 and accordingly re-designated as Associate Professor.
(xi) Readers/ Lecturers (Selection Grade) in service at present shall continue to be designated as Lecturer (Selection Grade) or Readers, as the case may be, until they are placed in the Pay Band of Rs. 37,400-67000 and re-designated as Associate Professor in the manner described in (x) above.
(xii) Assistant Professors completing 3 years of teaching in the AGP of Rs. 8000 shall be eligible, subject to other conditions, that may be prescribed by the UGC and the university, to move to the Pay Band of Rs. 37400-67000 with AGP of Rs. 9000 and to be designated as Associate Professor.
(xiii) Associate Professor completing 3 years of service in the AGP of Rs . 9000 and possessing a Ph.D . degree in the relevant discipline shall be eligible to be appointed and designated as Professor , subject to other conditions of academic performance as laid down by the UGC and if any by the university . No teacher other than those with a Ph.D. shall be promoted ,appointed or designated as Professor , The Pay Band for the post of Professors shall be Rs.37400-67000 with AGP of Rs. 10000.
(xiv) The pay of a directly recruited Professor shall be fixed at a stage not below Rs. 43000 in the Pay Band of Rs. 37400-67000, with the applicable AGP of Rs. 10000.
(xv) Ten percent of the posts of Professors in a university shall be in the higher AGP of Rs. 12000, however, teachers appointed to the posts shall continue to be designated as Professor. Eligibility for appointment as a Professor in the higher Academic Grade Pay shall be as may be laid down by the UGC, and such eligibility conditions shall, inter alia, include publications in peer reviewed/ refereed Research Journals, and the requirement of at least 10 years of teaching as Professor and post-doctoral work of a high standard. No person appointed directly as Professor in the AGP of Rs. 12000 shall be fixed at a stage less than Rs. 48000 along with the AGP.
(xvi) For initial direct recruitment at the level of Associate Professors and Professors, the eligibility conditions in respect of academic and research requirements shall be as may be or have been prescribed by the UGC through Regulations and as may be laid down by the university.
(xvii) Discretionary award of advance increments for those who enter the profession as Associate Professors or Professors with higher merit, high number of research publications and experience at the appropriate level, shall be within the competence of the appropriate authority of the concerned University or recruiting institution while negotiating with individual candidates in the context of the merits of each case, taking into account the pay structure of other teachers in the faculty and other specific factors.
(b) Professors in Under Graduate and Post Graduate Colleges:
(xviii) Ten percent of the number of sanctioned posts of Associate Professor in an Under Graduate College shall be that of Professors and shall be subject to the same criterion for selection/ appointment as that of Professors in Universities, provided that there shall not be more than one post of Professor in each Department; and provided further that One-fourth (25%) of the posts of Professor in UG Colleges shall be directly recruited or filled on deputation by eligible teachers and the remaining three-fourths (75%) of posts of Professors shall be filled by merit promotion from among eligible Associate Professors of the relevant department of the Under Graduate College. Identification of posts of Professor in an Under Graduate College for being filled through direct recruitment/deputation shall be within the competence of the University acting in consultation with the College. Where the number of posts of Professor worked out as a percentage of the number of posts of Associate Professor for merit promotion or direct recruitment/ deputation is not an integer, the same shall be rounded off to the next higher integer.
(xix) There shall be one post of Professor in each Department of a Post Graduate College and shall be subject to the same criterion for selection/ appointment as that of Professors in Universities, provided that One-fourth (25%) of the posts of Professor shall be filled on deputation/direct recruitment from among eligible teachers and the remaining three-fourths (75%) of posts shall be filled through merit promotion from among the eligible Associate Professors in the relevant department of the Post Graduate College. Identification of posts of Professor in a Post Graduate College for being filled through direct recruitment/deputation shall be within the competence of the University acting in consultation with the College. Where the number of posts of professor for merit promotion or direct recruitment/ deputation worked out as a percentage of the total number of posts in a Post Graduate College is not an integer, the same shall be rounded off to the next higher integer. The UGC shall issue separate guidelines to ensure availability of minimum standards of academic infrastructure (library, research facilities etc.) for starting Post Graduate Courses in Colleges."
36. Appendix-II of UGC Regulations 2010 also provides authenticated Fitment Tables (Table No.1 to 9) for fixation of pay of the existing incumbents, who were in position as on 1.1.2006 in various categories of posts and Table-1 (i) deals with incumbent Assistant Professor with pre-revised basic pay of Rs.8000-275-13500 (Group A entry) and Table-2 (I) deals with incumbent Assistant Professor (Formerly Lecturer (Sr. Scale) with re-revised basic pay of Rs.10000-325-15200. Table-3 deals with incumbent Readers and Lecturers (SG) with less than 3 years of service with pre-revised scale Rs.12,000-420-18,300. Table-4 deals incumbent Readers and Lecturers (SG) with 3 years of service with pre-revised scale Rs.12,000-420-18300.
37. Appendix-III Table-I deals with proposed scores for Academic Performance Indicators (APIs) in Recruitments and Career Advancement Scheme (CAS) Promotions of University/College Teachers. Based on the teacher's self-assessment, API scores are proposed for (a) teaching related activities; (b) domain knowledge; (c) participation in examination and evaluation; (d) contribution to innovative teaching, new courses etc. The minimum API score required by teachers from this category is 75. The self-assessment score should be based on objectively verifiable criteria wherever possible and will be finalized by the screening/selection committee. Universities will be required to detail the activities and in case institutional specificities require, adjust the weightages, without changing the minimum total API scores required under this category. Appendix-III Table-II (A) provides minimum APIs as provided in Appendix-III Table-I to be applied for the promotion of teachers under Career Advancement Scheme (CAS) in University Departments, and weightages for expert assessment. Appendix-III Table-II (B) provides minimum point norms of the APIs as provided in Table-I and weightages for expert assessment to be applied for the promotion of teachers in Colleges (UG and PG) under Career Advancement Scheme (CAS). Explanatory note for Tables II (a) and II (b) reads as follows:-
"1. All universities / colleges will set up verifiable systems for the API related information required in these tables within THREE months of notification of these regulations. They will have to be documented and collated annually by the Internal Quality Assessment cells (IQACs) of the universities / colleges for follow up by the universities / college authorities. In order to facilitate this process, all teachers shall submit the duly filled-in Performance Based Appraisal System (PBAS) proforma to the IQAC annually.
2. However, in order to remedy the difficulties of collecting retrospective information and to facilitate the implementation of these regulations from 31-12-2008 in the CAS Promotion, the API based PBAS will be progressively and prospectively rolled out.
3. Accordingly, the PBAS based on the API scores of categories I and II as mentioned in these tables is to be implemented for one year, initially based on the existing systems in universities / colleges for one year only with the minimum average scores as depicted in Table II (a) and II (b) in rows I to III. This annualized API scores can then be compounded progressively as and when the teacher becomes eligible for CAS promotion to the next cadre. Thus, if a teacher is considered for CAS promotion in 2010, one year API scores for 2009-10 alone will be required for assessment. In case of a teacher being considered for CAS promotion in 2011, two years average of API scores for these categories will be required for assessment and so on leading progressively for the complete assessment period.
4. As shown in Table II, the aggregate minimum API score required (given in row III) can be earned from any of the two broad categories, subject to the minimum prescribed in each category. This will provide for due weightage to teachers who contribute additionally through any of the components given in Categories I and II also for the differing nature of contributions possible in different institutional settings
5. For Category III (research and academic contributions), maintenance of past record is done on a normal basis by teachers and hence no difficulty is envisaged in applying the API scores for this category for the entire assessment period. In this category, an aggregate minimum score is required for promotion over each stage. Alternatively, a teacher should acquire the required minimum aggregate score over two previous stages, taken together. In the case of promotion to Professor, the publication requirement shall be met over the two previous stages.
6. Candidates should offer themselves for assessment for promotion, if they fulfill the minimum API scores indicated in Tables I and II, by submitting an application and the required proforma. They can do so three months before the due date if they consider themselves eligible. Candidates who do not consider themselves eligible, can also apply at a later date.
7. If however, on final assessment, candidates do not either fulfill the minimum criteria under Rows III and IV of Tables II(A) and II (B) or obtain less than 50% in the expert assessment, they will be reassessed only after a minimum period of one year.
8. (a) If a candidate applies for promotion on completion of the minimum eligibility period and is successful, the date of promotion will be deemed to be the minimum period of eligibility.
(b) If however, the candidate finds that she / he fulfills the eligibility conditions at a late date and applies on that date and is successful, her / his promotion will be deemed to be from that date of application
(c) If the candidate does not succeed in the first assessment, but succeeds in an eventual assessment, her / his promotion will be deemed to be from the later date."
38. This much is reflected from the record in question that consequent upon adoption/implementation of the VIth Pay Commission recommendations, the Vice Chancellor vide order dated 10.3.2011 had re-designated Readers/Lecturers (Selection Grade) as Associate Professors and placed them in the Pay Band IV (Rs.37400-67000) with AGP of Rs.9000/-. The petitioner had been accorded the said benefit w.e.f. 1.1.2006 at serial no.23 (page-88 of the paper book) and the respondent no.4 had been awarded the said benefit w.e.f. 1.8.2009 at serial no.378 (page-103 of paper book). Once this was the factual situation, that the respondent no.4 was re-designated as Associate Professor w.e.f. 1.8.2009; the said order was passed by the Vice Chancellor after the UGC Regulations 2010, which was never subjected to any discontent or objection by the respondent no.4, and the same has attained finality, then her case was liable to be considered in consonance with UGC Regulations 2010 and under the Self Appraisal Proforma for promotion to Professor under CAS as indicated above in detail, the promotion shall be made adhering to the norms and guidelines issued by the University Grants Commission from time to time. The petitioner was accorded promotion on the post of Associate Professor w.e.f. 1.1.2006. The respondent no.4 was promoted as Associate Professor w.e.f. 1.8.2009, and as per the Scheme in question, the respondent no.4 could be under the zone of consideration after completing three years' period and only thereafter the contesting respondent could be eligible for professorship but in the present matter, the Selection Committee, without following the extensive procedures contained in UGC Regulations 2010, had proceeded on its own wisdom to accord professorship to contesting respondent with effect from 4.8.2006. In the present matter, the AMU had deliberately adopted a noble device just to avoid the UGC Regulations 2010 wherein extensive methodology as enumerated above has been provided by the UGC for promotion under the direct recruitment and under the CAS. This is admitted situation that as per record no such exercise has been carried out by the AMU as per UGC Regulation 2010 while giving her promotion as Professor under CAS and as such, such recommendation is not in conformity with the procedures provided in the UGC Regulation 2010.
39. We are of the considered opinion that in the matter the CAS benefit was liable to be accorded in favour of respondent no.4 strictly as per UGC Regulations 2010 but the same has not been adhered. We proceed to make a mention that at no point of time the respondent no.4 had proceeded to the University for according her Professorship since 2006. As per appointment letter dated 11.7.2006, the respondent no.4 had only been asked for giving an option so that her previous services could be counted towards the pensionary benefits but under what circumstances the Selection Committee under CAS proceeded to confer the benefits of professorship with effect from 4.8.2006 is unknown to us.
40. Accordingly, we are of the considered opinion that the benefit under CAS, which has been conferred in favour of the respondent no.4 w.e.f. 4.8.2006, cannot be sustained in the light of the observations made as above and accordingly set aside. The matter is remitted back to the Vice Chancellor of the AMU to consider the claim of petitioner and contesting respondent under CAS strictly in consonance with the UGC Regulations 2010.
41. The writ petition is allowed, accordingly.
Order Date :- 07.4.2016 RKP