REGISTRAR KARNATAKA UNIVERSITY & ANR.V. DR. PRABHUGOUDA & ANR. versus DR. PRABHUGOUDA & ANR on 17 December 2020

1. Leave granted.

2. This civil appeal is filed by the Karnataka University, atDharwad, through its Registrar and another, aggrieved by the judgmentand order dated 02.01.2020, passed in writ appeal No.100436 of 2019,by the High Court of Karnataka, Dharwad Bench.

3. By the aforesaid Order, Division Bench of High Court hasdismissed the writ appeal preferred by the appellants herein, calling inquestion the order passed by the learned Single Judge in writ petitionNo. 100353 of 2018 (S-PRO) dated 13.03.2019 allowing the writ petition A

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Aand declaring that the effective date of “Career Advancement Scheme”(for short ‘CAS’) promotion of the first respondent-writ petitioner was01.01.2009 and also directed to grant all consequential benefits to him,as flow from such fixation. In fact, the CAS promotion was alreadygiven to the first respondent- writ petitioner and pay fixation has alreadybeen made, but it was from the date of 28.10.2013.B

4. The brief factual matrix of the case is that, the first respondent-writ petitioner had claimed his promotion under CAS, promulgated bythe UGC, to be given effect from 01.01.2009 instead of 28.10.2013,from which date, promotion is given to the writ petitioner. The writpetitioner was earlier working as an Associate Professor, in J.S.S College,Cwhich is affiliated to Karnataka University. In pursuance of syndicateResolution No.24 dated 26.10.2013, the writ petitioner was appointed asan Associate Professor in the P.G. Department of Studies in Mathematicsin the University. Pursuant to his appointment, he joined in the service ofthe University on 28.10.2013 and vide order dated 31.12.2015, his serviceDwas confirmed with effect from 28.10.2013.

5. By issuing Circular dated 04.07.2013, the University invitedapplications for promotion, from eligible Assistant Professors, Associateprofessor and Professor (stage 5) under CAS. The first respondent-writpetitioner made an application in response to the said Circular, forEpromotion to the post of Professor under UGC, CAS. He appeared forinterview on 12.08.2014 before the Board of Appointment (BOA), whichhas recommended his case for promotion and accordingly promotionorder was issued on 16.02.2016, promoting the writ petitioner as aProfessor, with effect from 28.10.2013, that is, from the date of hiseligibility, to the said post. He has been promoted to the post of ProfessorFwith effect from 28.10.2013, taking into consideration his past three yearsof service in previous college, where he worked as Associate Professor.The claim of the first respondent- writ petitioner in the High Court wasthat as he has completed three years of service in the cadre of AssociateProfessor from 01.01.2006 to 01.01.2009, as such, he ought to haveGbeen considered for promotion under CAS from 01.01.2009 instead of28.10.2013. During the relevant time, neither he was in the service ofthe University nor working in any of the constituent Colleges of theUniversity, but he was in service of J.S.S College, Dharwad, which is anaffiliated College to the Dharwad University. The first respondent- writpetitioner made representations dated 18.03.2016 and 25.07.2016, in thisH

regard, for which, he was replied by the University on 04.08.2017. Theclaim of the writ petitioner, for grant of CAS promotion from 01.01.2009,was placed before the Syndicateof the University, and the Syndicate inits meeting held on 19.07.2017, vide Resolution No.36, has rejected theclaim, stating that there is no provision to grant the said benefit from01.01.2009, as claimed. In accordance with the Resolution of theSyndicate, an endorsement came to be issued by the University on04.08.2017, a copy which was served on the writ petitioner.

6. Challenging the Resolution of the Syndicate of the University,bearing Resolution No. 36, dated 19.07.2017 and the endorsement dated04.08.2017, the first respondent has filed writ petition No. 100353 of2018 before the High Court of Karnataka, Dharwad Bench, questioningthe aforesaid resolution, endorsement and by seeking furtherconsequential directions to fix the eligibility date from 01.01.2009 forpromotion to the post of Professor under CAS, in mathematics, insteadof 28.10.2013 and to reconsider his representation dated 10.08.2017.The claim of the first respondent-writ petitioner was opposed, by filingthe written note of objections in the High Court but the learned SingleJudge of the High Court, by Order dated 13.03.2019, allowed the writpetition, by recording a finding that the writ petitioner completed threeyears of teaching by 01.01.2009, as such effective date should havebeen 01.01.2009. Learned Single Judge of the High Court was of theview that his service in affiliated College is also to be considered for thepurpose of promotion under CAS and consequently writ petitioner isentitled for promotion from 01.01.2009 instead of 28.10.2013.

7. Aggrieved by the Order of the learned Single Judge, theappellants herein preferred the writ appeal in writ appeal No. 100436 of2019 and by Order dated 02.01.2020, the said writ appeal is dismissed,confirming the Order of the learned Single Judge, by recording a findingthat the magnanimous interpretation is to be given for the wordings“University/Colleges”, as found in Clause 12.7 of the Statute. The DivisionBench has held that the word ‘colleges’ used in the Statute, not onlyincludes constituent colleges, but also includes other colleges, which areaffiliated to Karnataka University.

8. We have heard Sri Kirit Javali, learned counsel appearing forthe appellant-University and Sri Siddarath Bhatnagar, learned seniorcounsel appearing for the first respondent- writ petitioner.

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A9. Having heard the learned counsels on both sides, we haveperused the impugned order and other material placed on record.

10. It is contended by learned counsel for the appellants that, it isan admitted position that, prior to joining the appellant- University,respondent No.1- writ petitioner was working as Associate ProfessorBfrom 01.01.2006 till 23.10.2013 (with an affiliated College) and thereafter,he joined the University as Assistant Professor. It is submitted that atthe time of recruitment, respondent No.1 did not apply for the post ofProfessor, as he was well aware that he was not eligible for the same.The writ petitioner was promoted as Professor vide Order dated26.10.2013, he joined the University service with effect from 28.10.2013.CIt is submitted that the effective date of promotion of respondent No.1,for the post of Professor, cannot be from any date prior to 28.10.2013,as at that point of time, he was admittedly not in the employment ofUniversity. Further it is brought to the notice by the learned counsel thatvery preamble of the statute makes it clear that the candidate must haveDbeen on the rolls of the University or a Constituent College. It is furthersubmitted that the benefit of Clause 17 of the Statute was duly given torespondent No.1, and his previous service was considered for promotion,but as he was not in the effective service of the University, the Universityhas rightly given the effective date from 28.10.2013. It is submitted thatas per the statute framed by the University, the incumbent teacher wasErequired to be on the rolls of the ‘constituent College’ only and not‘affiliated College’. It is submitted that interpretation accorded to thestatute by the High Court, is improper, as is evident from the meaningfulreading of complete statute, as well as the preamble thereof.

11. On the other hand, learned senior counsel Sri SiddarathFBhatnagar, appearing for the first respondent has submitted that the Statuteframed by the University for effecting promotions in CAS, applies toProfessors, Associate Professors, Assistant Professors, Principals ofConstituent Colleges, Directors of Physical education and Librariansand allied posts. It is submitted that the term “principals of ConstituentGColleges”, ought to be read disjunctively, as against the other posts,mentioned in the provision, since it appears only qua a category ofprincipals and not other posts. By referring to the definition under Section2(2) of Karnataka State Universities Act, 2000, it is submitted that term“College” includes ‘Constituent College’ as well as ‘affiliated College’.It is further submitted that as the High Court has correctly interpretedH

the relevant statute and has recorded a finding that the effective date ofpromotion should have been 01.01.2009 instead of 28.10.2013, there areno grounds to interfere with the impugned judgment of the High Court.

12. Before we consider the rival submissions made by the learnedcounsels on both sides, we deem it appropriate to refer to certain relevantprovisions of the statute, governing the direct recruitment, promotionunder CAS, framed by the University. The preamble and the title of thestatute, read as under:

“PREAMBLE: Consequent upon the extension of UGC payscales as revised from 01.01.2006 in respect of Teachers,Librarians and Physical education Personnel of Universities andConstituent Colleges and issuance of letter No. 1-32/2006-U II/UI-I (i) dated 31.12.2008 of the Government of the India, Ministryof Human Resource Development, Department of HigherEducation, New Delhi and Notification No.F-3-1/2009 (PS) dated23.09.2009 of the University Grants Commission New Delhi andGovernment of Karnataka Order No. ED 37 UNE 2009, Bangaloredated 24.12.2009 prescribing the revised norms of recruitmentand qualification for appointment and promotion of Professors,Associate Professors, Assistant Professors, Physical EducationDirectors and Librarians, it has become imperative to frame thestatutes for recruitment and promotion of the above mentionedpersonnel in the Karnatak University, Dharwad.

TITLE: Statute governing the direct recruitment, promotion underCareer Advancement Scheme (CAS) and conduct of interviewto the posts of Professors, Associate Professors, AssistantProfessors, Principals of Constituent Colleges, Directors ofPhysical Education and Librarians under Section 40(1)(k) of KSUAct, 2000.”

13. Clause 12 of the Statute deals with the Screening-cum-Evaluation Committee for CAS Promotion. Clauses 12.6 and 12.7 of thestatute read as under:

“12.6 CAS promotions being a personal promotion to theincumbent teacher holding a substantive sanctioned post, onsuperannuation of the individual incumbent, the said post shallrevert back to its original cadre.

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A12.7 The incumbent teacher must be on the role and active serviceof the University/Colleges on the date of consideration by theSelection Committee for Selection/CAS Promotion.”

14. Clause 13 of the statute deals with the Stages of Promotionunder CAS of Incumbent and Newly Appointed Assistant Professors,BAssociate Professors, Professors. Clauses 13.7 and 13.8 of the statute,read as under:

“13.7 Assistant Professors completing three years of teaching inthird grade (stage 3) shall be eligible, subject to the qualifyingconditions and the API based PBAS requirements prescribed byCthis Statute, to move to the next higher grade (stage 4) and to bedesignated as Associate Professor.

13.8 Associate Professor completing three years of service instage 4 and possessing a Ph.D. Degree in the relevant disciplineshall be eligible to be appointed and designated as Professor andDbe placed in the next higher grade (stage 5), subject to (a) satisfying the required credit points as per API based PBASmethodology provided in Table I-III of Annexure-I stipulatedin this Statute, and

(b) an assessment by a duly constituted selection committeeEas suggested for the direct recruitment of Professor. Providedthat, no teacher, other than those with a Ph.D., shall be promotedor appointed as Professor.”

15. Clause 17 of the statute provides for Counting of Past Servicefor Direct Recruitment and Promotion Under CAS. A comprehensiveFreading of the statute makes it very clear that for the purpose of grantingCAS promotion, the incumbent teacher must have holding a substantivesanctioned post, as much as CAS promotion being a personal promotionto the incumbent teacher and on superannuation of the individualincumbent, the said post shall revert back to its original cadre. It is alsoclear that the incumbent teacher must be on the “roll and active servicesGof the University or the College”, on the date of consideration by theSelection Committee for selection under CAS Promotion. A harmoniousreading of Clauses 12.6 and 12.7 of the Statute read with the Preamblethereof, makes it clear that the term “College” used in the said statute isreferable to only Constituent College but not affiliated College.H

16. The High Court, by losing sight of a vital aspect namely, thatthe first respondent was not in actual service of the University or of theconstituent College, has ordered to extend the benefit from 01.01.2009,on the ground that he has completed three years of service, by workingas Assistant Professor in Mathematics in UGC pay scale with effectfrom 01.01.2006 to 01.01.2009. There cannot be any promotion in theUniversity for the period where the writ petitioner was not in effectiveservice of the University. The University is not expected to orderpromotion for the period when he was working in affiliated college. TheHigh Court, by mere mathematical calculation, by basing on the servicecertificate which is “Annexure D” before the High Court, has held thatas he has completed three years of service as Assistant Professor inUGC scale and therefore the effective date of promotion should be01.01.2009 and not 28.10.2013, as granted by the University. Further,the High Court has fell in error in interpreting clause/paragraph 12.7 ofthe Statute, by giving liberal meaning to the word “colleges”, by extendingto “affiliated college”. Even the Division Bench has also committed thesame error by recording a finding that a magnanimous interpretation isto be given for the wordings University/Colleges, as used in the paragraph/clause 12.7 of the Statute. The University has correctly interpreted thevarious clauses of the Statute and by giving the benefit of past service,has given effect to his promotion from the date of entry into the serviceof the University. It is also to be noticed that at the time of appointmentitself, though the writ petitioner has completed three years of service,fully knowing that he was not eligible for appointment as a Professor, hehas not claimed the post of Professor. Even the representations filed bythe writ petitioner indicate that he claimed notional service, in spite ofthe same, the High Court, by misconstruing the statute contrary to itsobjectives, as mentioned in the preamble liberally construed, going beyondthe scope of the statute and granted all consequential benefits, by declaringthat the effective date for promotion was to be 01.01.2009 instead of28.10.2013.

17. We do not find any substance in the argument made by thelearned senior counsel appearing for the respondents, that the term“principals of Constituent Colleges” ought to be read disjunctively asagainst the other posts mentioned in the provision. If it is to be read inthe manner as sought to be argued by learned counsel, same will runcontrary to the objectives and preamble of the statute itself. Even thesubmission of the learned counsel relying on the definition under Section AB

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A2(2) of Karnataka State Universities Act, 2000, also does not render anyassistance to support his case. Karnataka State Universities Act, 2000,applies to all the colleges, which includes private college. Even privatecolleges have to seek affiliation from the jurisdictional University, assuch the College is widely defined in the Act. Said definition cannot bereadily imported, as defined, for the purpose of grant of promotions underBCAS. For the purpose of grant of promotions under CAS, the word‘College’ is to be interpreted, keeping in mind, the preamble of the statute,governing promotions.

18. In that view of the matter, we are of the clear view that, theincumbent teacher, who is entitled for promotion under the scheme, is toCbe given benefit only from the entry of service of such incumbent intothe University. Though the earlier service is to be counted for the purposeof giving benefit of promotion, but effective date for all purposes is onlyfrom the date of entry of first respondent into the University service, i.e,28.10.2013. The University is not expected to grant promotion, coveringDthe period, anterior to the entry of service of the first respondent intoUniversity. As such, we are of the view that the University has rightlygiven the benefit of promotion from 28.10.2013.

19. For the aforesaid reasons, this civil appeal is allowed, andjudgment and Order dated 02.01.2020, passed by the High Court in writEappeal No. 100436 of 2019 (S-PRO), is hereby quashed and set asideand consequently the writ petition filed by the first respondent in writpetition No. 100353 of 2018 (C-PRO) stands dismissed. No order as tocosts.

FKalpana K. Tripathy

Appeal allowed.

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