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2023 Supreme(J&K) 137
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
SANJAY DHAR, J.
Dr. Hema Gandotra, D/o. Sh. Vijay Kumar Gandotra – Appellant
Versus
University of Jammu th. its Registrar, Jammu – Respondent
WP(C) No. 1898 of 2020
Decided on : 14-09-2023
Advocate Appeared:
For the Appellant : Mr. Vikas Magotra, Adv.
For the Respondent: Mr. A. P. Singh, Mr. Vikram Sharma, Mr. Sachin Dev Singh, Adv.
The main legal point established in the judgment is that past service without any break as Assistant Professor in the University is to be counted for placement for Assistant Professor in senior scale/selection grade, subject to the condition that the incumbent must have been appointed on the recommendation of the duly constituted selection committee. Additionally, for the purpose of seniority, the past service on a tenure post is not to be taken into account.
Headnote:
Regularization - University Appointment - UGC Norms - [Regularization] - [University Appointment] - [University Grants Commission Act, Section 13(1)(d); University Statutes, Chapter-III, Clause (XIII)] - The court discussed the regularization of a faculty member in a university and the application of UGC norms for counting past service for placement promotion. The court emphasized that past service without any break as Assistant Professor in the University is to be counted for placement for Assistant Professor in senior scale/selection grade, subject to the condition that the incumbent must have been appointed on the recommendation of the duly constituted selection committee. The court also clarified that for the purpose of seniority, the past service on a tenure post is not to be taken into account, ensuring that the petitioner was ranked senior to the respondent in the seniority list.
Fact of the Case:
The petitioner challenged the appointment of respondent No. 4 as Assistant Professor in the Department of Sociology and sought to restrain the university from conferring any benefit upon respondent No. 4 to the prejudice of the petitioner. The petitioner and respondent No. 4 were initially appointed as Lecturers in Sociology against tenure posts, and the dispute arose when respondent No. 4's services were regularized and her past service was counted for placement promotion.
Finding of the Court:
The court found that the petitioner's grievance was confined to the counting of past service of respondent No. 4, as it could affect the seniority position. The court noted that the respondent-University had taken a stand that the past service of respondent No. 4 would be counted only for placement promotion as per UGC norms and not for the purpose of seniority, ensuring that the petitioner was ranked senior to respondent No. 4 in the seniority list.
Issues: The issues involved the regularization of respondent No. 4's services, the counting of past service for placement promotion, and the seniority position of the petitioner and respondent No. 4.
Ratio Decidendi: The court held that past service without any break as Assistant Professor in the University is to be counted for placement for Assistant Professor in senior scale/selection grade, subject to the condition that the incumbent must have been appointed on the recommendation of the duly constituted selection committee. The court also clarified that for the purpose of seniority, the past service on a tenure post is not to be taken into account, ensuring that the petitioner was ranked senior to the respondent in the seniority list.
Final Decision: The writ petition was disposed of in light of the stand taken by the respondent-University regarding the counting of past services of respondent No. 4 and the position of seniority vis a vis the petitioner and respondent No. 4. No directions were required to be issued to the respondent-University in this writ petition.
JUDGMENT :
1. The petitioner has challenged order No. Adm/TW/20/2690-96 dated 10.11.2020 issued by respondent No. 1-University whereby respondent No. 4 has been inducted as Assistant Professor in the Department of Sociology by shifting a tenure post, on which respondent No. 4 was working, towards Revenue (Non-Plan) and giving her the benefit of past service. The challenge has also been thrown to the decision taken by the Kashmir University Council in the Meeting held on 05.06.2020 vide Resolution No. 80.20 of 2020 which became the basis for issuance of impugned order dated 10.11.2020. The petitioner has further sought a direction upon respondents 1 to 3 restraining them from conferring any benefit upon respondent No. 4 on the basis of impugned order dated 10.11.2020 to the prejudice of the petitioner.
2. The facts which emerge from the pleadings of the parties are that the petitioner as well as respondent No. 4 were appointed as Lecturers in Sociology against tenure posts for a period of two years on contract basis in terms of orders No. Adm/TW/06/4816-27 dated 07.08.2006 and Adm/TW/07/10422-34 dated 31.08.2007 respectively in pre-revised pay scale of Rs. 8000-275-13500 on the recommendation of the duly constituted selection committee of the respondent-University. The terms of these posts came to be extended from time to time in accordance with the decision taken by the University Council vide various resolutions passed from time to time.
3. It seems that the University Grants Commission (UGC) sanctioned 12 regular posts of Lecturers for the respondent-University and out of these 12 posts, one post of Lecturer was relocated to the Department of Sociology. The applications were invited for filing up of this post vide advertisement Notice No. Adm/TW/2011/3912-4012 dated 12.09.2011, whereafter interviews of the candidates were also conducted. The petitioner as well as respondent No. 4 participated in the said selection process but ultimately, it was the petitioner who was recommended for selection and she was appointed to the post of Assistant Professor in Sociology in the pay band of Rs. 15,600-39,100 plus AGP Rs. 6000 in terms of order bearing No. ADB/TW/11/5981-93 dated 28.11.2011. Respondent No. 4, however, could not be selected.
4. It appears that respondent No. 4 made a number of representations to the authorities of the respondent-University pleading for her regularization on the analogy of other faculty members of the Department. Opinion of the Principal Secretary to Government (Financial Advisor Universities) was sought by the respondent-University and vide his opinion dated 23.02.2018, the Principal Secretary suggested regularization of respondent No. 4 against an additional permanent vacancy which could be agreed to be created. The University Syndicate deferred the matter from time to time as writ petition for regularization of his services was filed by respondent No.4 before this Court.
5. On 05.06.2020, the matter was discussed in the meeting of Kashmir University Council and in the said meeting, a decision was taken for shifting of tenure post of Assistant Professor held by Dr. Ghulam Nabi Badar in the Department of Pharmaceutical Science towards Revenue (Non-Plan) of the University. It was further resolved that the resolution shall also be applicable to the University of Jammu in the case of respondent No. 4.
6. Pursuant to the aforesaid resolution, respondent No. 4 withdrew the writ petition and accordingly vide impugned order dated 10.11.2020, the services of respondent No. 4, who was working as Assistant Professor in the Sociology against a tenure post, was shifted towards Revenue (Non-Plan). It was further provided that respondent No. 4 shall be on probation for a period of one year and her past service rendered in the University shall be counted for placement promotion as per UGC norms.
7. It has been contended by the petitioner that in the first instance, it was not open to the respondent-University to shift the ten
