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Madras High CourtWP/3139/2024disposed of

Dr.S.R.Prabagaran v. The Registrar

2024-02-13Honourable Mr Justice G.K. Ilanthiraiyan12 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 13.02.2024

CORAM:

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN and W.M.P.Nos.3403 and 3406 of 2024 Dr.S.R.Prabagaran

...Petitioner

-VsThe Registrar, Bharathiar University, Coimbatore - 641 046.

... Respondent Prayer : Writ Petition filed under Article 226 of Constitution of India praying for the issuance of a Writ of Certiorarifed Mandamus, to call for the records of the respondent in his proceedings No .Estt./E7/2015/CAS/ 20687 dated 11.09.2015 to the extent that promotion is granted to the petitioner from the post of Assistant Professor Stage- II to Assistant Professor Stage - III with effect from 28.08.2014 and consequential order of the respondent in his proceedings No.E7/ 2018/ 5535- 28 dated 04.01.2019 to the extent that promotion is granted to the Petitioner from the post of Assistant Professor Stage - III to Associate Professor Stage -IV with effect from 28.08.2017 and the Consequential order of the respondent in his Proceedings No.E7/CAS Pro./2022/24107 dated 01.12.2022 to the extent that promotion is granted to the petitioner from

the post of Associate Professor Stage-IV to Professor with effect from 28.08.2020 and to quash the same as being illegal and unsustainable in law and for a consequential direction to the first respondent to revise the date of promotion from 28.08.2014 to 12.04.2012 and subsequent promotions with all attendant benefits.

For Petitioner : M/s N.Kavitha Rameshwar

ORDER

This writ petition has been filed for the issuance of Writ of Certiorarifed Mandamus, calling for the records of the respondent in his proceedings No.Estt./E7/2015/CAS/20687 dated 11.09.2015 to the extent that promotion is granted to the petitioner from the post of Assistant Professor Stage- II to Assistant Professor Stage - III with effect from 28.08.2014 and consequential order of the respondent in his proceedings No.E7/ 2018/ 5535- 28 dated 04.01.2019 to the extent that promotion is granted to the Petitioner from the post of Assistant Professor Stage - III to Associate Professor Stage -IV with effect from 28.08.2017 and the Consequential order of the respondent in his Proceedings No.E7/CAS Pro./2022/24107 dated 01.12.2022 to the extent that promotion is granted to the petitioner from the post of Associate Professor Stage-IV to

Professor with effect from 28.08.2020 and to quash the same as being illegal and unsustainable in law and for a consequential direction to the first respondent to revise the date of promotion from 28.08.2014 to 12.04.2012 and subsequent promotions with all attendant benefits.

2. The petitioner has been appointed as Lecturer in the department of Bio-Technology in the first respondent University, through proceedings dated 11.04.2005. His probation was also declared on 04.02.2008 with effect from 11.04.2007. The respondent University had called for applications under the Career Advancement Scheme (hereinafter called as "CAS") and the petitioner made application for promotion from Stage-I to Stage-II as an Assistant Professor. Accordingly, the first respondent promoted the petitioner from Assistant Professor Stage-I to Stage-II with effect from 12.04.2009 in the pay band of Rs.15600-39100 with AGP of Rs.7000/-.

3. As per the CAS norms, the petitioner is eligible for counting of past services as Research Associate, Center for Cellular and Molecular

Biology, Hyderabad during the period of 15.11.2001 to 08.08.2005. It is also to be counted for the purpose of promotion under CAS. He had also completed one orientation course and one refresher course from 16.01.2007 to 05.02.2007 and 07.08.2014 to 27.08.2014 as required under the norms. He was given promotion with effect from 12.04.2009. However, the counting of his past service has not been carried out and his promotion was not revised.

4. The petitioner is eligible for promotion from 12.04.2007 itself. Therefore, the petitioner raised objections and the same was considered. The respondent, by its proceedings dated 11.09.2015, promoted the petitioner to the post of Assistant Professor Stage-II with retrospective effect from 12.04.2007 by considering his past services rendered as Research Associate, Center for Cellular and Molecular Biology, during the period of 15.11.2001 to 08.08.2005. Thereafter, the petitioner was promoted to the post of Assistant Professor Stage III with effect from 28.08.2014 instead of 12.04.2012. in the pay band of Rs.15600-39100 with AGP Rs.8000/- under CAS. After completion of five years in stage

II, the petitioner is eligible for promotion to the post of Assistant Professor Stage III. He had completed five years of service and therefore, the promotion should be with effect from 12.04.2012. Though the petitioner submitted representation, it was rejected on the ground that orientation course and refresher course had been completed by the petitioner only on 27.08.2014. The date of completion of orientation course and refresher course will no longer have a bearing on the date of promotion, as the UGC Regulations, 2018, as adopted by the Government of Tamil Nadu in G.O.Ms.No.5 (Higher Education) Department dated 11.01.2021, requires that for promotion due under the CAS, orientation and refresher course shall not be mandatory upto 31.12.2018.

5. Once again, without considering the same, the petitioner was given promotion to the post of Associate Professor Stage IV with effect from 28.08.2017 instead of 12.04.2015. The respondent issued a circular dated 09.07.2021, thereby calling for applications from the eligible faculty members for promotion under the UGC-CAS for promotion to the

post of Professor. In the meanwhile, there was an audit objection dated 18.10.2021. In view of the said audit objection, by its communication dated 04.02.2022, the respondent directed the petitioner to express his willingness to revise the date of promotion already awarded under CAS, annexing the revised order stating that in pursuant to the audit objection in audit report dated 18.10.2021 his date of promotion from Assistant Professor Stage I to Stage II is revised with effect from 12.04.2009 by deleting his past service. It is pertinent to note that the requirement for orientation and refresher course for promotion due under the CAS shall not be mandatory after 31.12.2018. Therefore, the said audit objection was challenged in W.P.No.2228 of 2024 and this Court, by an order dated 02.02.2024, set aside the audit objection. Without considering the same, the respondent granted promotion to the petitioner to the post of Professor with effect from 28.08.2020 instead of 12.04.2018.

6. Heard the learned counsel appearing on either side and perused the materials placed before this Court.

7.

The learned counsel appearing for the petitioner relied upon the order passed this Court in W.P.No.20558 of 2018 dated 15.06.2022 in the case of Dr.A.Balamurugan Vs. The Barathiar University, which reads as follows:- "15. Now the controversy is in a very narrow compass, and the issue to be decided is as to whether the petitioner is entitled to get promotion to the post of Assistant Professor Stage-II with effect from 07.03.2013 or from 14.06.2014.

16. The only hurdle for the petitioner to get such promotion from 07.03.2013 instead of 14.06.2014 is that, the petitioner completed the refresher course only on 13.06.2016, which was one of the essential qualification as per the 2010 Regulations.

17. However, the 2018 UGC Regulations made it clear that till 31.12.2018 the requirement of orientation and refresher course shall not be treated as mandatory one, and thereby that can be dispensed with. Therefore, based on the requirement of refresher course or orientation course the promotion need not be delayed to any incumbent like the petitioner in view of the 2018 UGC Regulations, which has in fact been adopted by the State Government in G.O.Ms.No.5 dated 11.01.2021. Therefore, the benefit of the UGC Regulations 2018 followed by the Rule of the State

Government, which adopted the 2018 Regulations can very well be extended to the petitioner. If that being so, the petitioner would be entitled to hold the post of Assistant Professor Stage II with effect from 07.03.2013 instead of 14.06.2014. Therefore, this Court feels that the impugned order can be interfered with to that extent.

18. In the result, the following orders are passed in this writ petition.

* That the impugned order giving promotion to the petitioner to the post of Assistant Professor Stage II to the extent 'with effect from 14.06.2014' is hereby set aside. * As a sequel, there shall be a direction to the respondent University to confer such promotion to the petitioner ie., Assistant Professor Stage II with effect from 07.03.2013 and accordingly the consequential service benefits also can be conferred on the petitioner.

* The needful as indicated above shall be undertaken by the respondent University within a period of eight weeks from the date of receipt of a copy of this order." Thus, it is clear that till 31.12.2018, the requirement of orientation and refresher course shall not be treated as mandatory one and it can be dispensed with.

8.

Further the Hon'ble Division Bench of this Court in the judgment dated 20.10.2023 passed in W.A.No.224 of 2023 etc., batch in the case of Dr.R.Prabhakaran Vs. The Registrar, Bharathiar University and ors., held that even if the State government is a body that funds the University, the State Government cannot, under the guise of auditing the accounts of the University, interfere with the internal administration of the University and the power of the University includes the power to make appointments as well as further promotions.

Therefore, the third respondent completely ignored the factual background as well as the circumstances in which the petitioner claims to be appointed as Assistant Professors in the respondent University under the UGC plan and more importantly, that it was beyond their power as well as jurisdiction under the Tamil Nadu Local Fund Audit Act, 2014 as well as under the Bharathiar University Act, 1981, to have raised objections with regard to the validity of the appointments made under the UGC XI Plan. Further the UGC regulations of the year 2018 have also been adopted by the Government in G.O.Ms.No.5 Higher Education Department, dated 11.01.

orientation and refresher course for promotion due under the CAS shall not be mandatory upto 31.12.2018. Hence, the impugned proceedings cannot not be sustained and are liable to be quashed.

9. Accordingly, proceedings No.Estt./E7/2015/CAS/ 20687 dated 11.09.2015, proceedings No.E7/ 2018/ 5535- 28 dated 04.01.2019 and Proceedings No.E7/CAS Pro./2022/24107 dated 01.12.2022 are hereby quashed. The respondent is directed to revise the date of promotion from 28.08.2014 to 12.04.2012 to the post of Assistant Professor Stage III and subsequent promotions with all attendant benefits, within a period of twelve weeks from the date of receipt of a copy of this order.

10. In view of the above, this writ petition is allowed. Consequently, connected Miscellaneous petitions are closed. There shall be no order as to costs.

13.02.2024 Internet: Yes Index : Yes/No Speaking/Non Speaking order mn

To The Registrar, Bharathiar University, Coimbatore - 641 046.

G.K.ILANTHIRAIYAN. J, mn 13.02.2024