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     REPORTABLE IN THE SUPREME COURT OF INDIA   CIVIL APPELLATE JURISDICTION

CIVIL   APPEAL Nos.13724-13725 OF 2015   (Arising out of SLP(C)Nos.33090-33091 of 2014)

VINDU KISHORE SHARMA                              .......APPELLANT

VERSUS

CHANCELLOR, CHAUDHARY CHARAN SINGH UNIVERSITY,  MEERUT & ORS.                     .......RESPONDENTS

WITH   CONMT.PET.(C)Nos.479-480/2015  

         IN     SLP(C)Nos.33090-33091/2014   

                                                   J U D G M E N T

J.S.KHEHAR, J. C.A.Nos.13724-13725 of 2015 (Arising out of SLP(C)Nos.33090-33091  of 2014)

1. Leave granted. 2. The appellant – Vindu Kishore Sharma was appointed as a Reader  in  the  Department  of  Physics  of  the  Chaudhary  Charan  Singh  University, Meerut (hereinafter referred to as `the University') on  30.03.1982.  The appellant claimed onward promotion to the post of  Professor  under  the  “Personal  Promotion  Scheme”.  The  promotion  under  the  “Personal  Promotion  Scheme”  was  introduced  by  an  amendment  of  the  Uttar  Pradesh  State  Universities  Act,  1973  (hereinafter  referred  to  as  `the  University  Act')  by  inserting

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Section 31A therein. Section 31A being relevant for the present  controversy, is extracted hereunder:

“  31-A.  Personal promotion to Teachers of University   :  (1) Notwithstanding anything to the contrary contained  in any other provision of this 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.”

A  perusal  of  Section  31A  reveals,  that  a  scheme  of  personal  promotion is contemplated for Lecturers, who can be promoted as  Readers;  and  for  Readers,  who  can  be  promoted  as  Professors.  Section 31A also contemplates that eligibility for promotion under  the “Personal Promotion Scheme” would be determined on the basis of  “...such qualifications, as may be prescribed...”.   3. The  first  prescription  of  qualifications  for  promotion  under the “Personal Promotion Scheme”, contemplated under Section  31A of the University Act, came to be issued on 25.02.1984. Under  the aforesaid instructions, a Reader who had completed 10 years  regular service against the post of Reader (out of which 5 years  should have been rendered in the same University) would be eligible  for  personal  promotion  to  the  post  of  Professor.  The  1984

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instructions also postulated, that such of the teaching staff as  are  eligible,  and  would  apply  for  personal  promotion  in  the  prescribed proforma, would be allowed personal promotion subject to  their  work  being  adjudged  as  satisfactory,  by  a  Selection  Committee. 4. Having been inducted into the service of the University  on  30.03.1982,  the  appellant  became  eligible  for  personal  promotion, under the instructions dated 25.02.1994, on 30.03.1992.  Consequent upon the appellant having raised a claim for promotion,  the Chancellor of the University allowed him personal promotion  against the post of Professor, with effect from 11.03.1992. This  promotion was granted to the appellant, only after he had been  cleared for the same by the Executive Council of the University. 5. Even  though  the  appellant  was  promoted  under  the  “Personal Promotion Scheme” to the post of Professor with effect  from  11.03.1992,  the  order  of  promotion  came  to  be  revoked  on  05.06.2008.  A  perusal  of  the  aforesaid  order  dated  05.06.2008  reveals, that the order of personal promotion was recalled  because  the  appellant  had  not  opted  to  be  governed  by  the  policy  of  promotion contemplated under the instructions dated 25.02.1984.  It  was the express case of the University, set up in the order dated  05.06.2008, that to continue to be governed by the instructions  dated 25.02.1984, it was imperative for the appellant to have opted  out of the schemes, that came to be issued through the instructions  dated  10.09.1987  and  07.01.1989.  Since  the  appellant  had  not  exercised his option for continuing to be governed by the scheme of  25.02.1984,  his  claim  could  not  be  considered  under  the  said

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“Personal Promotion Scheme”  regulated by the instructions dated  25.02.1984. 6. The  order  dated  05.06.2008,  passed  by  the  University,  came to be assailed by the appellant by filing Civil Miscellaneous  Writ Petition No.32271 of 2002, in the High Court of Judicature at  Allahabad,  wherein,  the  prayer  of  the  appellant  was  for  the  issuance of a writ, order or direction in the nature of writ of  certiorari for quashing the order dated 05.06.2008 passed by the  University. The above writ petition was disposed of by the High  Court, through an order dated 12.12.2013, declining the prayer made  by the appellant (for quashing the order dated 05.06.2008). The  aforesaid  order  dated  12.12.2013  (as  also,  the  order  dated  11.07.2014,  rejecting  the  review  petition)  is  assailed  by  the  appellant, through the instant appeals.   7. The  solitary  contention  advanced  at  the  hands  of  the  learned counsel for the appellant, during the course of hearing  was,  that  the  appellant  having  applied  for  promotion  under  the  “Personal  Promotion  Scheme”  should  be  deemed  to  have  opted  for  being governed under the scheme of 25.02.1984.  At this juncture,  it would be relevant to indicate, that the appellant had applied  for promotion under the Personal Promotion Scheme on completing 10  years of service (on 30.03.1992) as Reader, in 1998.   8. The solitary question that arises for our consideration  is, whether the appellant could claim promotion under the “Personal  Promotion Scheme” of 25.02.1984.  Whilst it is the contention of  the appellant, that the appellant could be considered under the  “Personal Promotion Scheme” of 25.02.1984; it is the submission of

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the  learned  counsel  for  the  respondent,  that  the  scheme  of  25.02.1984, having been superseded by the schemes of 10.09.1987 and  07.01.1989, clearly debarred the claim of the appellant under the  earlier scheme of 25.02.1984. 9. We have perused instructions dated 10.09.1987. The same  have been placed on the record of this case as Annexure P-2. A  perusal  of  the  instructions  dated  10.09.1987  reveals,  that  the  primary  purpose  thereof  was,  to  implement  the  revision  of  pay  scales  of  teachers  in  University  and  degree  colleges.  While  implementing  the  aforesaid  revised  pay  scales,  the  authorities  introduced  an  amendment  in  the  “Personal  Promotion  Scheme”,  as  well.  In  doing  so,  the  instructions  dated  10.09.1987  clearly  contemplated as under :

“1.   This  scheme  applies  to  teachers  in  all  State  Universities  and  Colleges  administered  by  the  U.P.  State  Universities  Act,  1973,  admitted  to  the  privileges of the Universities unless they specifically  exercise an option in writing to remain out of this  Scheme as provided in para 19 hereafter.

xxx xxx xxx

19. The  existing  teachers  in  Universities  and  Colleges will have an option to continue to be governed  by the provisions of the aforesaid Personal Promotion/  Selection Grade schemes provided that they exercise that  option in writing within 90 days of the date of issue of  this Government order. They will also be entitled to the  designation envisaged for teachers in those schemes, but  the scale of pay will be as follows :

(i)  Lecturer Rs. 2,200-4,000 (ii) Reader/Lecturer Rs. 3,000-5,000

             (Selection Grade) (iii)Professor/Principal      Rs. 4,500-5,700”

             (Selection Grade)

The aforestated extracts from the scheme of 10.09.1987, leaves no

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room  for  any  doubt,  that  such  of  the  teachers  who  desired  to  continue to be governed under the erstwhile scheme of 25.02.1984,  were required to exercise an express option to remain out of the  new scheme of 10.09.1987, in writing within 90 days, failing which  it would be deemed as if, they had opted to be governed by the  amended scheme of 10.09.1987.  The express stance adopted by the  appellant was, that there was no requirement for the appellant to  exercise  an  option,  to  remain  under  the  erstwhile  scheme  of  25.02.1984. It is therefore, that he did not tender such an option.  The  extracted  paragraphs  of  the  second  scheme  dated  10.09.1987  clearly reveals, that the view of the appellant was misconceived.  Factually, the scheme of 10.09.1987 expressly required all teachers  who desired to continue under the prevailing scheme of 25.02.1984,  to make an option in writing to that effect.  Since the appellant  did not exercise such an option, we have no doubt whatsoever, that  the appellant after the introduction of the scheme of 10.09.1987,  came to be governed by the latter scheme of 10.09.1987.   10. Even  after  the  scheme  of  10.09.1987,  the  competent  authority  issued  a  further  “Personal  Promotion  Scheme”,  on  07.01.1989.  On this occasion also, similar stipulations, as were  made in the scheme of 10.09.1987, were again made in the revised  scheme, which are apparent from the following paragraphs of the  revised scheme dated 07.01.1989 :

“1. This scheme applies to teachers in all State  Universities/Colleges administered by the U.P. State  Universities Act, 1973 admitted to the privileges of  the Universities unless they have already specifically  exercised an option in writing to remain out of this  Scheme as referred to in para 19 hereinafter.

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xxx xxx xxx 19. These  teachers  in  Universities  and  colleges  will continue; to be governed by the provisions of the  aforesaid  personal  promotion/selection  grade  scheme  who  have  already  exercised  that  option  in  writing  within  90  days  of  the  date  of  issue  of  Government  order dated 10 Sept 1987. Such teachers will also be  entitled  to  the  designation  envisaged  for  various  categories of teachers in these schemes but the scales  of pay will be as follows:- (i)  Lecturer Rs. 2,200-4,000 (ii) Reader/Lecturer Rs. 3,000-5,000      (Selection Grade) (iii)Professor/Principal Rs. 4,500-5,700”      (Selection Grade)    

For exactly the same reasons as have been recorded by us with  reference to the “Personal Promotion Scheme” of 10.09.1987, we are  satisfied,  that  for  continuing  in  the  erstwhile  scheme  of  25.02.1984,  it  was  imperative  for  a  teacher  governed  by  the  conditions of Section 31A of the University Act, to opt in writing  to remain under the scheme of 25.02.1984. All those who did not  exercise their express option in writing, would automatically be  deemed to have accepted to be governed by the amended scheme of  07.01.1989.  Yet again, it is apparent, that the appellant did not  exercise his option, even after the issuance of the amended scheme  of 07.01.1989 (to continue in the original scheme of 25.02.1984). 11. In the above view of the matter, there can be no doubt,  that the claim of the appellant for personal promotion could not  have  been  considered  under  the  original  scheme  of  25.02.1984.  Accordingly,  we  find  no  infirmity  in  the  impugned  order  dated  05.06.2008  passed  by  the  University,  whereby,  the  personal  promotion granted to the appellant against the post of Professor

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with  effect  from  11.03.1992  has  been  revoked.  The  order  of  promotion was revoked because the claim of the appellant had been  considered under the “Personal Promotion Scheme” of 25.02.1984.  The appellant's claim was wrongly considered under the “Personal  Promotion Scheme” because he had not exercised an option in writing  to be governed by the same, after the schemes of 10.09.1987 and  07.01.1989 were issued.  12. It is, however, apparent, that the appellant enjoyed the  benefit of personal promotion, till the order of promotion was  revoked on 05.06.2008.  Such being the situation, we are of the  view, that it would be extremely unjust to require the appellant to  refund the emoluments paid to him beyond his entitlement (with  effect from 11.03.1992 till 05.06.2008). We therefore direct the  respondent-University not to make any recovery of the emoluments  released  to  him,  consequent  upon  his  promotion  to  the  post  of  Professor with effect from 11.03.1992.   13. We have been informed, that the appellant has since been  retired from service on attaining the age of superannuation. We are  satisfied, that the ends of justice would require the respondent- University to calculate and release the retiral benefits to the  appellant. However, before such retiral benefits are released to  the appellant, we direct the respondent-University to consider the  claim of the appellant for personal promotion (or for his placement  in a higher grade) under the amended scheme of 07.01.1989. And in  case the appellant is entitled to promotion (or for the benefit of  a higher grade) under the amended scheme, the appellant shall be  allowed the same by the respondent-University in consonance with

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law. The instant exercise shall be carried out by the respondent- University  within  three  months  from  the  date  of  receipt  of  a  certified copy of this order. 14. The appeals are disposed of in the above terms.

       CONMT.PET.(C)Nos.479-480/2015 IN SLP(C)Nos.33090-33091/2014  

15. In  view  of  disposal  of  main  appeals,  nothing  further  survives in these petitions, and the same are disposed of as such.

                                             ..........................J.  

              (JAGDISH SINGH KHEHAR)                                         

    ..........................J.            (R. BANUMATHI)

NEW DELHI; NOVEMBER 26, 2015.

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