Prof Laxman Shivaji Godse v. All India Shri Shivaji Memorial Society And ANR

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 12071 OF 2024 Prof Laxman Shivaji Godse Petitioner

Versus

All India Shri Shivaji Memorial Society & Anr Respondents Mr. Yashodeep Deshmukh, a/w Vaidehi Pradeep & Pratham Gavali Advocates for the Petitioner.

Mr. Shrikrishna R. Ganbavale, a/w Shantanu Patil Advocates for Respondent No.2.

CORAM:

SOMASEKHAR SUNDARESAN, J.

DATE:

Judgement:

1.

Rule. By consent of parties, made returnable forthwith and taken up for final hearing and disposal.

Context and Factual Background:

2.

This Petition impugns the decision of the Grievance Committee passed by an Order dated March 11, 2022 and an Order dated October 30, 2023 passed by the University Tribunal (collectively, "Impugned ASHWINI JANARDAN VALLAKATI Order"), on the premise that the specific entitlements of the Petitioner ASHWINI JANARDAN VALLAKATI Date: 2026.01.17 15:00:53 +0530 have not been dealt with and the contentions of the Petitioner,

specifically made in relation to the factual matrix of the case, have been ignored.

3.

The factual matrix relevant for purposes of this Petition may be summarized thus :- a) The Petitioner, Laxman Shivaji Godse ("Petitioner") joined Respondent No.2, College (collectively, with Respondent No. 1, "Respondents") as a Lecturer in the Electrical Engineering Department. Thereafter, the Petitioner was formally absorbed on a regular and full-time basis as a Lecturer on July 25, 1998;

b) The Petitioner's appointment was approved on August 10, 1998 and from this date, the eligibility of the Petitioner under the 'Career Advancement Scheme' ("CAS") commenced;

c) On August 10, 2004, the Petitioner completed six years of regular service, thereby being eligible for promotion to the post of Lecturer (Senior Scale) under the CAS norms with the Fifth Pay Commission benefits being applicable; d) On September 22, 2004, the Petitioner completed his

Masters in Electrical Engineering;

e) Eventually, the University constituted an Expert Committee for purposes of assessing CAS benefits of various employees in January 2009. The sittings of the Expert Committee for purposes of CAS benefits were held at Sinhgad College of Engineering on January 31, 2009. The Petitioner was not recommended for the post of Lecturer (Senior Scale);

f) The Petitioner sought information as to the reasons for him not being recommended, in exercise of his rights under the Right to Information Act, 2005. It is the Petitioner's case that the reasons for non-recommendation were cryptic, vague and not supported by any material; g) According to the Petitioner, throughout the relevant period, records of the performance appraisal, such as performance reviews or confidential reports of the Petitioner had not been shared with him. Therefore, it is his contention that the reasons for him not being recommended are arbitrary;

h) The Petitioner filed Complaint No.23 of 2019 before the Grievance Committee seeking issuance of directions to grant him CAS benefits right from his first eligibility in 2004, and thereafter, to the next level in terms of the All India Council For Technical Education ("AICTE") norms for CAS benefits;

i) The Grievance Committee framed an issue as to whether the Petitioner was eligible for CAS benefits and had a valid grievance about being denied the same. The Grievance Committee held that the Expert Committee had taken a view on the basis of existing norms and therefore, if they did not recommend him, no fault could be found for the Petitioner not being granted CAS benefits;

j) The University Tribunal, considering a challenge to the decision of the Grievance Committee under Section 81 of the Maharashtra Public Universities Act, 2016 also took a view that since the Expert Committee was an independent committee and it did not recommend the Petitioner for CAS benefits, no fault could be found with the decision of the Grievance Committee;

k) The University Tribunal examined the criteria that would be relevant for considering the grant of CAS benefits and simply held that considering that the composition of the Committee comprised external persons, and the Committee made no discrimination specifically targeted against the Petitioner, the Petitioner's grievance was without merit. The Tribunal held that the Committee evaluated the performance of 37 teachers, including the Petitioner and recommended 22 teachers for grant of Senior Scale, while 15 teachers including the Petitioner were not recommended.

Contentions of the Parties:

4.

Against this backdrop, I have heard Mr. Yashodeep Deshmukh, Learned Advocate on behalf of the Petitioner and Mr. Shrikrishna Ganbavale, Learned Advocate on behalf of the Respondents extensively, and perused the record with their assistance. 5.

Mr. Deshmukh's primary contention is that the Tribunal has explicitly noted that the Performance Appraisal Report assessed and evaluated by the CAS Committee were the reports relating to the period between April 1, 2005 and June 30, 2008 - clearly, the period after the date of his entitlement to advancement. The report given by the

Selection Committee was also examined by the Tribunal and the Tribunal noted that the Committee had stated that the scrutiny of the documents submitted by the Petitioner led to a unanimous recommendation that he was not found fit because he did not fulfil all the conditions laid down by the AICTE and the University and therefore did not recommend his name for benefits in the Senior Scale. 6.

According to Mr. Deshmukh, it is clear from the Impugned Order that the Selection Committee considered the service record of the candidates and evaluated the performance of the teachers as reflected in the self appraisal form and the appraisal reports to arrive at its view that the Petitioner was not deserving of CAS benefits. The Tribunal formed a view that merely because the Committee comprised external experts, no bias could be perceived. According to Mr. Deshmukh, the fatal error involved is the fact that, admittedly, the performance appraisal reports presented by the Respondents to the Expert Committee related to the years 2005-06, 2006-07 and 2007-08.

7.

He would point out that the eligibility for CAS benefits was an entitlement due in 2004 when the Petitioner completed six years of regular service and that obviously, the performance appraisal reports for the period preceding 2004 were not even considered by the Committee.

Merely because the Expert Committee was not formed in time, Mr. Deshmukh would contend, the Petitioner ought not to be denied his right to be considered for promotion at the relevant time. The consideration of performance appraisal reports for the period immediately preceding the Committee being convened, is in conflict with the requirements of the AICTE guidelines, Mr. Deshmukh would submit, when it was meant to examine performance appraisal reports for the period preceding the due date of promotion. Since the decision was based on irrelevant information, it is contended, the decision is rendered arbitrary.

8.

Mr. Deshmukh would submit that the Petitioner had specifically raised a grievance with the Grievance Committee pointing out that he had never been given the performance appraisal reports for the period subsequent to the due date of consideration, and therefore, he was clueless about purportedly adverse remarks having been made about him by the evaluating authority. Mr. Deshmukh would point to an explicit submission dated February 4, 2020 made to the Grievance Committee, which has not been dealt with at all by the Grievance Committee in its order dated March 11, 2022.

9.

In contrast, Mr. Ganbavale, on behalf of the Respondents, would

submit that the Respondents cannot be held responsible for any breach by the Expert Committee, even assuming that the grievances raised by the Petitioner were accurate. He would submit that the records made available to the Expert Committee by the Respondents correctly related to the relevant period for which performance needs to be examined by the Expert Committee - if the performance proximate to the consideration of the record and assessment for promotion is bad, there need not be a recommendation.

10.

According to Mr. Ganbavale, the constitution of the Expert Committee is not within the control of the Respondents and therefore, it cannot be faulted for the delay in consideration of the Petitioner's application for extension of CAS benefits to him. Having convened in 2009, the Expert Committee rightly considered the then available performance appraisal reports and therefore, the Respondents cannot be faulted for the grievance being raised on behalf of the Petitioner. 11.

Both Learned Advocates would spar over other disputes between their respective clients and whether or not such disputes influenced the manner of conduct of the assessment by the Expert Committee which led to denial of CAS benefits to the Petitioner.

Analysis and Findings:

12.

Having heard the Learned Counsel for the parties, in my opinion, it is not possible for a writ court to express an opinion on the merits of whether or not the Petitioner would be eligible for CAS benefits. That would be a decision on merits, falling in the domain of expertise, for which due process entails the formation of an Expert Committee to make such assessment. However, what squarely falls for consideration in the writ jurisdiction is whether the Expert Committee was given and considered relevant material or whether it considered irrelevant material, thereby vitiating the decision taken. 13.

What is evident from the record is that the Expert Committee indeed met only in 2009, while the Petitioner's entitlement to be considered for CAS arose in 2004. The Expert Committee had indeed convened with inordinate and unexplained delay and a scheme of statutory benefits for incentivizing teachers under the AICTE's policy has been delayed for no fault of the teachers. 14.

On the face of the record, the material presented to the Expert Committee relates to a period that is not stipulated for purposes of assessment in terms of the AICTE's norms. Indeed, the Respondents cannot be held responsible for the delay in the formation of the Expert

Committee, but the information supplied to the Expert Committee is indeed information supplied by the Respondents. Indeed, the candidates would provide self assessment reports, but the performance appraisal reports assessed by the Expert Committee are those provided by the Respondents and not by the Petitioner. 15.

Therefore, it would not be possible to accept the view that the Respondents have no role whatsoever to play in the process of assessment and that the process is a matter entirely outside the pale of influence of the Respondents. It is evident that when the Respondents finalized a list of eligible employees for purposes of consideration under the CAS Scheme as per the Fifth Pay Commission, the Respondents indeed included the Petitioner's name for consideration by the Expert Committee. Explicitly, the statement published by the Respondents, which lists the Petitioner's name, records the "due date" of placement in "Lecturer (Senior Scale)" as August 10, 2004. Likewise, it is apparent that the Respondents have no quarrel about the due date of placement in the "Lecturer (Selection Grade)" as August 10, 2009. 16.

Therefore, it is common ground between the parties that indisputably the due date for consideration of promotion to the Senior Scale was August 10, 2004 and for Selection Grade was August 10,

2009. The presentation of such information by the Respondents is in fact responsive to, and in conformity with, the format stipulated by AICTE for purposes of such consideration by the Expert Committee. The format stipulates identifying the due date for placement in the relevant scale under the AICTE's respective scales. Therefore, there can be no quarrel about whether the Petitioner was due for consideration of placement in the Senior Scale on August 10, 2004. 17.

Therefore, the question to be answered is what material and data would inform the decision for entitlement to CAS benefits. If the consideration for an escalation in pay is due as of a certain date, would information relating to the period after the due date be relevant or irrelevant factors. The response to this would inform whether the decision was arbitrary or reasoned.

18.

Both Learned Advocates submit that this question is not covered by any precedent. Mr. Deshmukh would contend that the CAS benefits are an entitlement, while Mr. Ganbavale would contend that they are a privilege. Each of the Learned Advocates tendered various policy documents, Government Resolutions, directives and notifications of the AICTE to assist the Court in appreciating the policy intent underlying the CAS benefits. A few relevant ones are discussed below.

Maharashtra's 1999 GR:

19.

Both Learned Advocates rely on the resolution of the Government of Maharashtra dated December 18, 1999, dealing with the AICTEKs CAS policy ("1999 GR"), which indicates that the AICTE scheme is applicable to all teachers and the revised scales of pay would be applicable to all of them, subject to fulfillment of eligibility criteria. The effective date for revision of scales under the 1999 GR was fixed as January 19, 1996. In other words, the revisions took retrospective effect for the preceding three-years, with the manner of fixation being governed by the 1999 GR.

20.

Paragraph 6 of the 1999 GR requires teachers desirous of opting for the revised pay scale having to, within one month, execute an agreement in the stipulated form with the educational institution about their acceptance of the terms and conditions set out in the 1999 GR. Teachers who were in service as of January 1, 1996 and those who could not be in service after that date owing to termination, and thereby would not be around to exercise the option were deemed to have opted for the revised pay scales with effect from January 1, 1996 and "should be held entitled to the benefit" of the 1999 GR. Likewise, even if a beneficiary were to not exercise the option within one month, such person would be

deemed to have opted for the revised pay scales. 21.

Therefore, in my opinion, even a plain reading of the 1999 GR would indicate that participation for the CAS benefits constituted an entitlement and not a privilege. Any teacher, lecturer and other persons for whose benefit the scheme has been formulated could be entitled to the revised pay scales so long as the eligibility criteria are met. Therefore, it is not a matter of unbridled discretion as to whether or not an employee may get CAS benefits. The discretion to grant or refrain from granting the benefits is to be reasonably exercised in the matter of examining if the eligibility criteria are met, in accordance with the specific guidelines stipulated by the AICTE at a policy level and by the Government of Maharashtra at the implementation level for the State of Maharashtra.

22.

Paragraph 9 of the 1999 GR explicitly provides that the minimum length of service for eligibility to move into the grade of "Lecturer (Senior Scale)" would be four years for those with PhD; five-years for those with M.E. or M. Tech; and six-years for others. Likewise, for eligibility to move into the grade of "Lecturer (Selection Grade)", the length of service as a Lecturer (Senior Scale) would uniformly be five years. For every upward movement, a selection process was required to

be evolved for which appropriate guidelines were to be laid down by the AICTE in consultation with the Government of India. 2000 AICTE Notification:

23.

A plain reading of the AICTE Notification dated March 15, 2000 ("AICTE Notification") would show that the scheme was meant to cover all teachers of the educational institutions which are covered by the AICTE Act. Specific cadre structures and stipulations had been made. It is common ground between the parties that the 1999 GR is consistent with the AICTE policy, which then indicates that guidelines would be evolved for this purpose from time to time by the AICTE. GOM's Directives:

24.

It is also seen from the record that the Government of Maharashtra issued a communication dated February 14, 2002 to all educational institutions covered by the AICTE norms, invoking the Fifth Pay Commission recommendations and explicitly provided that the committees were expected to be constituted at the earliest and that, in no circumstances delays should be found in the implementation of the AICTE norms. It was directed that the committee must convene in a timely fashion and the administration of the respective college and

educational institution would have total responsibility to ensure that the committee for purposes of assessing CAS is indeed constituted and timely decisions are taken.

25.

Representation of the Government on the committee was underlined as a matter of utmost necessity. The communication urged urgent and serious attention to the subject by all the educational institutions, to ensure that the 1999 GR was truly implemented. 26.

On November 8, 2004, the Government of Maharashtra issued a further set of directions by which the composition of the committee was stipulated. It is seen that the Principal of the respective educational institution was to be an integral member of the committee. This direction dated November 8, 2004 explicitly directed that a committee for making such recommendations was required to be presented with data by the educational institution. Every year, to avail of the CAS benefits, invitations were to be extended and consideration ought to have been made in January and June of every year. 27.

From the aforesaid, in my opinion, it is clear that as early as November 8, 2004 (which is proximate to the due date of promotion to which the Petitioner was entitled to be considered for his first round of assessment under the CAS), the AICTE norms, read with the 1999 GR

had been operationalized by the Government of Maharashtra with regular follow up, necessitating the constitution of the Committee with recommendations being made twice a year so that no members of the teaching staff are left out for assessment under the CAS. The entitlement to be considered under CAS is therefore an entitlement created under the law and policy governing their career progression, and it cannot be the fault of the teachers if the constitution of the Committee and its implementation are delayed. Maharashtra's 2015 GR:

28.

It is noteworthy that on October 17, 2015, the Government of Maharashtra passed another Resolution which dealt with CAS benefits. It was resolved that the qualifications and experience for direct recruitment and for CAS placements from January 1, 2006 to September 10, 2012 would continue to be the same as per the recruitment rules under the Fifth Pay Commission published on September 5, 2000.

29.

As a separate matter, by July 8, 2019, it became clear that the Government of Maharashtra stepped up the intensity of this requirement by directing that the Committee must meet every month to ensure that there is no backlog in implementation of the norms.

Further, certain revised conditions for CAS under the Sixth Pay Commission came to be notified and it was made clear that the Selection Committee meetings must be held promptly and its processes must be completed within a timeframe of six months from the application by the respective candidates for placement under the CAS benefits. 30.

It was specifically provided that the CAS benefits constitute a personal promotion to the incumbent teacher. If the candidates who offer themselves for assessment under CAS fulfill the minimum academic performance indicator scores and conform to the requisite performance based appraisal system, the candidates must be considered within a period of six months and a decision must be taken one way or the other. In any event, it was directed that the university and the educational institution concerned must issue a general circular twice a year calling for applications for CAS from eligible candidates. 31.

It was made clear that a candidate who applies immediately on completion of the minimum eligibility period, if successful, would be promoted with effect from the date of completion of the minimum period of eligibility. However, if the candidate applies at a later date, upon becoming successful, the promotion would be effected from the date of the application.

32.

This resolution also made it clear that the advancement to the higher grade pay scales could be effected on the basis of personal appraisal and confidential report of the last five-years in accordance with Government of Maharashtra guidelines for governing promotion to various posts.

Other Policy Documents:

33.

A careful reading of multiple policy documents tendered on behalf of the Respondents, including the Annexure dated October 9, 1998 appended to the AICTE Notification, would show that the underlying policy intent and the principles have continued without material change, with further improvement of benefits for teachers being stipulated in successive notifications. What becomes clear is that to qualify for assessment to the respective grades, a minimum job experience is stipulated. This would lead to a reckoning of the "due date" for placement in the respective upgraded, promoted scale. This is why, in my opinion, the Respondents have always included the name of the Petitioner within the list of eligible candidates who would qualify for falling within the zone of consideration for the CAS benefits. 34.

Having examined the same from the perspective of substantive policy requirements as well as the procedural formats stipulated under

such policy, it becomes clear that all along the due date for promotion would be the due date on which the candidate would finish the requisite length of experience in the relevant post.

35.

Specifically, when one looks at the notification dated January 10, 2009 issued by the University to which the Respondents are affiliated, it becomes clear that the guidelines and the criteria to be applied for the CAS in the faculty of Engineering were as set out in Annexure 'A' to the said letter. Annexure 'A' explicitly refers to the number of years in service and under the head "appraisal reports" in each of the categories, the appraisal reports to be considered are exactly, "last five years consistently satisfactory reports from the due date of promotion". Likewise, the number of years of service is also explicitly set out under each head.

36.

A clear reading of the foregoing coupled with the application made by the Petitioner would clearly indicate that the Petitioner joined as a Lecturer on a regular full-time basis on August 10, 1998 and his due date for promotion to the Senior Scale was August 10, 2004. This has hardly been quarreled even by Mr. Ganbavale on behalf of the Respondents. Where Mr. Ganbavale would urge the Court to differ with the Petitioner is on the fact that the data to be considered by the

Committee is the data relating to the last five-years preceding the dates on which the candidates need to be considered for CAS. 37.

I am unable to agree with such an interpretation since it is not consistent with a conjoint reading of all policy documents and instruments stipulated for administering the CAS. They inexorably point to a specific "due date" for promotion. Since the due date for promotion is explicitly spelt out, when the criteria refer to the performance appraisal reports of the "last five-years from such due date", it would mean the five years preceding the due date of promotion. It cannot be five years after the due date, depending on when the educational institution and the university choose to have the Expert Committee convene.

38.

It would also inflict violence to a logical, reasonable and wholesome interpretation of the policy in a manner by which the candidates' assessment is made proximate to the due date of promotion. The relevant factors considered would be the performance record that is proximate to the due date of promotion, not the subsequent data or data proximate to when the assessment is chosen to be made - in this case, five years later.

39.

The logic behind such a reading is not far to seek. It is seen from the material on record that, despite the AICTE and the Government of Maharashtra having repeatedly urged educational institutions to implement the CAS system, the formation of the committee and the administration of the policy has been far from satisfactory. From the very facts of this case, it is clear that for over a decade, since the effective date of the CAS policy namely, January 1, 1996, the Committee to implement the CAS was not even constituted and did not even convene until January 31, 2009.

40.

In the interregnum, the entire class of teachers, lecturers and other academic staff who are the beneficiaries of the incentive system created by the CAS policy would not even be considered for assessment, owing to the even the committee not being constituted. Mr. Ganbavale would submit that the responsibility for such delay can never be laid at the doorstep of the educational institute, since, the Selection Committee was meant to be established by the university and not by the educational institutions. However, the repercussions of not forming a committee cannot be inflicted on the teachers either. It is clear from the various resolutions and directives of Government of Maharashtra that the university as well as the educational institutions repeatedly have been repeatedly urged by the Government of Maharashtra to act with due

dispatch and speed to ensure that such policy is implemented expeditiously. Such urging is evident right since the 1999 GR of the Government of Maharashtra.

41.

If the educational institution is not responsible for the delay, needless to say, the teaching staff could never be held responsible for the delay either. It is a legitimate expectation of the teaching staff that a policy formulated to incentivize educationists and to give them a career progression must not be denied to them merely because the administrative machinery between the university and educational institution could not act with due dispatch and implement the policy. 42.

Likewise, despite the Petitioner's due date of promotion having been identified as August 10, 2004, the data provided to the Expert Committee by the Respondents, in the teeth of the requirement stipulated by AICTE, the performance data for the last five-years from the due date of promotion had not even been placed for consideration before the Expert Commission.

43.

I am unable to accept the strenuous contention on behalf of the Respondents that it was incumbent on the employees to present their appraisal information on their own for the Expert Committee's consideration. Of course, the employees are expected to do a self

appraisal, but that is not all that the committee would consider. The Expert Committee is required to consider the performance appraisal data for the five years that precede the due date for promotion. It is on that basis that the recommendation made as of the due date would need to be considered. Evidently, in the facts of this case, such data was never presented to the Expert Committee. The Expert Committee has instead been presented performance appraisal reports of the period 2005-06 to 2007-08.

44.

Obviously, such data does not fall within the ambit of the information stipulated for consideration by the AICTE and the Government of Maharashtra. Therefore, in my opinion, the decision of the Expert Committee stands vitiated by having taken into account irrelevant information and not having taken into account relevant information. This has rendered the decision of the Expert Committee arbitrary. When a specific grievance on this count was presented to the Grievance Committee, it ought to have been dealt with. The Grievance Committee simply ruled that because an Expert Committee was involved, no grievance was maintainable. The issue of whether the Respondents presented relevant information was not gone into. The Petitioner has explicitly taken the stance that no performance appraisal reports of the period referred to had even been shared with him, for him

to know that there had been any adverse remark during that period. Even if one were to assume that the subsequent period were somehow relevant for consideration by the Expert Committee, this contention ought to have been dealt with by the Grievance Committee. The order passed by the Grievance Committee is completely silent on this specific contention and grievance raised by the Petitioner. The Grievance Committees very mandate is to deal with such a grievance and it has failed to consider this explicit grievance raised by the Petitioner. 45.

Likewise, the Tribunal too has simply and summarily relied upon the selection of successful candidates having been made on the basis of recommendations by an Expert Committee. While the Tribunal is right about the need to be slow in interfering with matters falling in the domain of an Expert Committee, where the Tribunal, in my respectful opinion, has erred is in not dealing with whether relevant information had at all been provided to the Expert Committee and whether irrelevant information had been provided.

46.

The scope of review would have been one of due process and whether due process had been applied, rather than on whether the expert view could be substituted by the quasi-judicial body. Therefore, on the face of it, I have no hesitation in holding that irrelevant

information has found its way into the assessment of recommendation and this facet of the matter was indeed up for judicial review in the course of the Tribunal's conduct of its appellate review. 47.

Such assessment not having been made, it would follow that the due process stands vitiated, and therefore, a case of unreasoned and arbitrary decision making appear to have been made out. Therefore, this is a fit case for setting aside the orders of the Grievance Committee and the Tribunal. The Respondents are directed to place before the next sitting of the Expert Committee (now required to meet every month), the record of the last five years preceding the due date of the respective promotions of the Petitioner. The Expert Committee shall consider the same on merits and make its assessment on making the recommendation.

48.

All the information and human resources records submitted to the Expert Committee would fall within the control and domain of the Respondents. The educational institution is in possession of all confidential reports and performance appraisal records that would need to be considered and assessed by the Expert Committee. The performance appraisal reports for the five years preceding the respective due dates of promotion shall be provided to the Expert Committee by

the Respondents at the next sitting of the Expert Committee. The Expert Committee is requested to take a view at the earliest in accordance with law, preferably within a period of three months from the presentation of the requisite information by the Respondents. 49.

It is made clear that the eligibility for consideration for each promotion is a distinct and separate consideration. The due date for each is distinct and separate. These shall be distinctly and separately considered.

50.

It is made clear that nothing in this judgment is an expression of opinion on the merits of eligibility or lack thereof. What is clear to me is that irrelevant factors being considered has tainted the reasonableness of the decision and vitiated the decision-making process. Therefore, on that ground, the process having become arbitrary, the aforesaid directions have been passed.

51.

It is in these circumstances that the Petition deserves to be allowed in the aforesaid terms. Rule is made absolute accordingly. No order as to costs.

52.

All actions required to be taken pursuant to this order shall be taken upon receipt of a downloaded copy as available on this Court's website.

[ SOMASEKHAR SUNDARESAN, J.]