Dr.M.Muthtamilselvan v. The Registrar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.02.2024
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN Dr.M.Muthamilselvan ... Petitioner -Vs1. The Registrar, Bharathiar University, Coimbatore - 641 046.
2. University Grant Commission (UGC), Bahadur Shah Zafar Marg, New Delhi-110 002.
... Respondents Prayer: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records of the first respondent in his proceedings No.E7/2018/5535-34 dated 09.07.2018 and to the extent that promotion is granted to the petitioner from the post of Assistant Professor Stage-I to Assistant Professor Stage-II with effect from 25.08.2013 and to quash the same as being illegal and unsustainable in law to the extent stated herein above and for consequential direction to the first respondent to give effect to the said promotion order of Assistant Professor Stage I to Stage II from 04.03.2013 and to subsequent promotion orders with corresponding dates accordingly.
For Petitioner : M/s.Kavitha Rameshwar
ORDER
This writ petition has been filed challenging the proceedings issued by the first respondent dated 09.07.2018, thereby revised the pay scale and refix the same and also ordered to recover the excess payment from the petitioner.
2.
The petitioner has been appointed as an Assistant Professor in the department of Applied Mathematics in the first respondent university on 28.02.2011. His service was regularized on 13.04.2015 from the date of joining. His probation was also declared on 16.12.2016 from 03.03.2013. 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 StageII as an Assistant Professor. Accordingly, the first respondent promoted the petitioner from Assistant Professor Stage-I to Stage-II with effect from 25.08.2013 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 Post-Doctoral Researcher. It is also to be counted for the purpose of promotion under CAS. He had also completed one orientation course that was held from 12.06.2013 to 09.07.2013 and one refresher course from 04.08.2015 to 24.08.2015 as required under the norms. He was given promotion with effect from 25.08.2013 by an order dated 09.07.2018. However, the counting of his past service has not been carried out and his promotion was not revised from 04.03.2013. 4.
The third respondent had raised an audit objection by way of Audit Slip dated 24.04.2021 and the petitioner was called upon to reply. The petitioner submitted detailed reply dated 16.07.2021 to the first respondent. In pursuant to the circular issued by the first respondent dated 09.07.2021, called for application from eligible faculty members for promotion under UGC-CAS. The petitioner submitted his application for his promotion from Assistant Professor Stage II to Stage III along with necessary documents. However, it was not considered. In respect of his reply to audit slip forwarded by the first respondent, it is pending. Though the petitioner made several representation to the audit objection
raised by the third respondent, it was not considered. The requirement for orientation and refresher course for promotion under the CAS shall not be mandatory upto 31.12.2018. However, the audit slip is still pending and kept alive.
5.
Heard the learned counsel appearing on either side and perused the materials placed before this Court. 6.
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, 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.
7.
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, which 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 11.01.2021, wherein it has be reiterated the requirement of orientation and refresher course for promotion due under the CAS shall not be mandatory upto 31.12.2018. Hence, the impugned proceedings shall not be sustained and liable to be quashed. 8.
Accordingly, the impugned proceedings dated 09.07.2018, passed by the first respondent, is hereby quashed and the Writ Petition stands allowed. There shall be no orders as to costs. 01.02.2024 Internet: Yes Index : Yes/No Speaking/Non Speaking order gvn
G.K.ILANTHIRAIYAN. J, gvn To
1. The Registrar, Bharathiar University, Coimbatore - 641 046.
2. University Grant Commission (UGC), Bahadur Shah Zafar Marg, New Delhi-110 002.
01.02.2024