# Dr. Bhaktiputra Rohtam v. Banaras Hindu University & Ors

- **Citation:** (2024) 3 ILRA 680
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-13
- **Case number:** Writ A No. 18332 of 2023
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-bhaktiputra-rohtam-v-banaras-hindu-university-ors-51738
- **Pages:** 18

## Headnote

Law
-
Career
Advancement
Scheme
(CAS)
Promotion
-
Notional
Promotion Post-Retirement - Petitioner, an
Associate Professor at Banaras Hindu University,
sought promotion to Professor under the CAS as
per UGC Regulations, 2018, claiming eligibility
from 04.11.2021 - Held, the University's failure
to process the petitioner's application due to the
absence of an Executive Council was unjustified,
as the Vice Chancellor could have exercised
powers under Section 7-C(5) of the Banaras
Hindu University Act, 1915 - The CAS promotion
process is primarily based on seniority and
assessment of self-appraisal, not a competitive
selection, entitling the petitioner to notional
promotion
from
the
date
of
eligibility
(04.11.2021) with consequential benefits for
pension and retirement dues, subject to
screening
by
a
Screening-cum-Evaluation
Committee. (Paras 6, 12, 19, 22, 23, 25, 29, 46)

Service
Law
-
Re-Employment
of
Superannuated
Teachers
-
UGC
Regulations Vs Guidelines - Petitioner
sought re-employment as a teacher postretirement under Regulation 2.1 of UGC
Regulations,
2018,
which
permits
reemployment of Assistant Professors, Associate
Professors, and Professors - Held, the UGC
Regulations, 2018, prevail over the 2008 UGC
Model Guidelines, which limited re-employment
to Professors only, as guidelines lack statutory
backing
and
cannot
override
regulations
approved by Parliament - The proviso to
Regulation 2.1 applies only to procedural
aspects not covered by the regulations, and the
petitioner, as an Associate Professor, is eligible
for re-employment if vacancies exist. (Paras 7,
9, 30, 31, 35, 36, 38, 45, 46)
Service Law - Vice Chancellor's Powers
and University's Lapse - The University cited
the absence of an Executive Council since
November
2020
as
the
reason
for
not
processing the petitioner's CAS promotion -
Held, the Vice Chancellor had the authority
under Section 7-C(5) of the Banaras Hindu
University Act, 1915, to act in emergencies,
including
constituting
a
Screening-cumEvaluation Committee, and the failure to do so
was a procedural lapse that cannot penalize the
petitioner
-
The
rejection
orders
dated
22.05.2023 and 09.10.2023 were quashed, with
directions to evaluate the petitioner's promotion
and re-employment claims. (Paras 8, 20, 22, 27,
46)

Writ Petition Allowed.

Orders Dated 22.05.2023 and 09.10.2023
Quashed - Directions Issued for Notional
Promotion and Re-Employment.

List of Cases Cited:

## Text

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680 INDIAN LAW REPORTS ALLAHABAD SERIES
annum, from the date of filing of the
application till the amount is actually
disbursed.

Writ petition is, accordingly,
allowed.

No order as to costs."

23. After the aforesaid judgements of
this Court, State Government itself has
issued a Government Order on 03.02.2023
whereby it has been provided that if a
teacher has not submitted his option to
retire at the age of 60 years and he dies
before completion of 60 years of age, he is
entitled for payment of gratuity.

24. Once a teacher who has not
submitted option to retire at the age of 60
years with gratuity and dies before
completion of 60 years of age has been
held to be entitled for payment of gratuity,
there cannot be any reason to deny the
payment of gratuity to a teacher who
submits option to retire before completion
of 60 years of age and said option is duly
accepted by the competent authority.

25. The State Government itself has
provided that if a teacher has not opted to
retire at the age of 60 years with gratuity
and demits the office due to his death
before completing 60 years of age, he is
entitled for payment of gratuity meaning
thereby that those teachers who retire
before completion of 60 years of age
cannot be denied the benefit of gratuity
only because they have not submitted
option to retire at the age of 60 years.

26. It is also worth consideration of
this court that petitioner's application for
voluntary retirement is in-fact an option
given by her to retire from service before
completion of 60 years of age and once the
State Government by way of Government
Order dated 03.02.2023 has provided that
the teachers who demit the office due to
death without submitting option to retire at
the age of 60 years are entitled for payment
of gratuity then the petitioner's case stands
at a better footing as she has in-fact opted
to retire before completion of 60 years of
age, therefore, she cannot be denied the
gratuity.

27. In view of the aforesaid reasons,
this writ petition is allowed. Respondents
No. 3 and 4 are directed to calculate the
gratuity payable to the petitioner on the
basis of her length of service and to pay
calculated amount to the petitioner within a
period of two months from the date of
service of certified copy of this order.

28. The District Basic Eduction
Officer, Varanasi is also directed to pass
reasoned and speaking order regarding
admissibility of interest over the delayed
payment of gratuity to the petitioner within
a period of three months from the date of
service of certified copy of this order.

29. So far as applicability of the
provisions of Payment of Gratuity Act,
1972 in the case of petitioner is concerned,
since this court has held that petitioner is
entitled for payment of gratuity in terms of
existing policy of State Government, the
said issue is left open to be decided at
appropriate point of time.
----------
(2024) 3 ILRA 680
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.02.2024
BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ A No. 18332 of 2023

Dr. Bhaktiputra Rohtam ...Petitioner
3 All. Dr. Bhaktiputra Rohtam Vs. Banaras Hindu University & Ors.
681
Versus
Banaras Hindu University & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Priyansh, Sri
Sanjeev Singh (Sr.
Advocate)

Counsel for the Respondents:
Sri Dhananjay Awasthi, Sri Hem Pratap
Singh, Sri Rahul Jain

Service
Law
-
Career
Advancement
Scheme
(CAS)
Promotion
-
Notional
Promotion Post-Retirement - Petitioner, an
Associate Professor at Banaras Hindu University,
sought promotion to Professor under the CAS as
per UGC Regulations, 2018, claiming eligibility
from 04.11.2021 - Held, the University's failure
to process the petitioner's application due to the
absence of an Executive Council was unjustified,
as the Vice Chancellor could have exercised
powers under Section 7-C(5) of the Banaras
Hindu University Act, 1915 - The CAS promotion
process is primarily based on seniority and
assessment of self-appraisal, not a competitive
selection, entitling the petitioner to notional
promotion
from
the
date
of
eligibility
(04.11.2021) with consequential benefits for
pension and retirement dues, subject to
screening
by
a
Screening-cum-Evaluation
Committee. (Paras 6, 12, 19, 22, 23, 25, 29, 46)

Service
Law
-
Re-Employment
of
Superannuated
Teachers
-
UGC
Regulations Vs Guidelines - Petitioner
sought re-employment as a teacher postretirement under Regulation 2.1 of UGC
Regulations,
2018,
which
permits
reemployment of Assistant Professors, Associate
Professors, and Professors - Held, the UGC
Regulations, 2018, prevail over the 2008 UGC
Model Guidelines, which limited re-employment
to Professors only, as guidelines lack statutory
backing
and
cannot
override
regulations
approved by Parliament - The proviso to
Regulation 2.1 applies only to procedural
aspects not covered by the regulations, and the
petitioner, as an Associate Professor, is eligible
for re-employment if vacancies exist. (Paras 7,
9, 30, 31, 35, 36, 38, 45, 46)
Service Law - Vice Chancellor's Powers
and University's Lapse - The University cited
the absence of an Executive Council since
November
2020
as
the
reason
for
not
processing the petitioner's CAS promotion -
Held, the Vice Chancellor had the authority
under Section 7-C(5) of the Banaras Hindu
University Act, 1915, to act in emergencies,
including
constituting
a
Screening-cumEvaluation Committee, and the failure to do so
was a procedural lapse that cannot penalize the
petitioner
-
The
rejection
orders
dated
22.05.2023 and 09.10.2023 were quashed, with
directions to evaluate the petitioner's promotion
and re-employment claims. (Paras 8, 20, 22, 27,
46)

Writ Petition Allowed.

Orders Dated 22.05.2023 and 09.10.2023
Quashed - Directions Issued for Notional
Promotion and Re-Employment.

List of Cases Cited:

1. U.O.I. & anr .Vs Manpreet Singh Poonam &
ors., 2022 LiveLaw (SC) 254

2. St. of Uttar Pradesh & ors. Vs Roshan Singh &
ors., (2006) 13 SCC 661

3. Bangali Prasad Sharma Vs St., Writ Petition
No. 13240 (SS) of 1990, decided on 03.08.1995
(Allahabad High Court, Lucknow Bench)

4. Ali M.K. Vs St. of Kerala, (2003) 11 SCC 632

5. Prakash & ors. Vs Phulvati & ors., (2016) 2
SCC 36
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Sanjeev Singh, learned
Senior Advocate assisted by Sri Priyansh,
learned counsel for the petitioner, Sri Rahul
Jain, learned counsel appearing for the
University Grants Commission and Sri
Hem Pratap Singh, learned counsel for the
respondent- University.
682 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Petitioner has approached this
Court for two reliefs: (I) Promotion under
the
Career
Advancement
Scheme
(hereinafter referred as 'CAS') from the
date he became entitled; and (II) for reemployment as a teacher in the department
as per Regulation 2.1 of the University
Grants Commission Regulations, 2018 (for
short, 'U.G.C. Regulations, 2018') notified
on 18th July, 2018.

3. Briefly stated facts of the case are
that the petitioner while working as
Associate Professor in the faculty of
Sanskrit Vidya Dharm Vigyan, Banaras
Hindu
University,
Varanasi,
became
entitled to be considered for promotion as
Professor in the University on 04.11.2021
under
CAS
of
University
Grants
Commission (for short 'U.G.C.') vide
Regulation 6.3 of U.G.C. Regulations,
2018.

4. Accordingly, for first relief,
petitioner moved an application before the
Vice Chancellor for consideration of his
candidature for promotion under the CAS
on 04.11.2021 itself which got admittedly
received in the Selection and Assessment
Cell
of
the
B.H.U.
University
on
05.01.2022.
However,
nothing
further
happened in the matter and petitioner's
application for promotion under the CAS
remained pending. Since the petitioner's
claim was not being considered for
promotion, he made representation and
ultimately retired from the faculty of the
University
upon
attaining
age
of
superannuation on 31.12.2022.

5. After retirement, petitioner applied
for re-employment i.e. his second relief, as
per the provisions contained under the
Regulation 2.1 of U.G.C. Regulations,
2018 but when his application for reemployment was also not given any
consideration, he filed a writ petition before
this Court being Writ-A No.11409 of 2023
in which a direction was issued to the Vice
Chancellor to dispose of matter of his claim
that he would raise in his representation.
Petitioner,
accordingly,
made
a
representation on 11.08.2023 which came
to be ultimately rejected by the Vice
Chancellor of the University vide his order
dated 09.10.2023, now impugned in the
present petition.

6. Regarding promotion under the
CAS, the argument advanced is that
petitioner's claim to be promoted as
Professor got matured on 04.11.2021 and,
therefore,
applying
the
procedure
prescribed for under Regulation 6.3 of the
U.G.C. Regulations, 2018, petitioner's
claim ought to have been considered. He
submits that the University failed to accord
due consideration to the claim of the
petitioner. It was University's fault for
which petitioner cannot be penalised and
accordingly, cannot be made to suffer.

7. In support of his second relief for
re-employment
as
Teacher
in
the
University,
he
heavily
relied
upon
Regulation 2.1 of Regulations, 2018 to
contend that be it Assistant Professor or
Associate Professor or Professor, a teacher
of any of these categories was entitled to be
re-employed
provided
there
existed
vacancy in the department. He, thus,
submits that Vice Chancellor manifestly
erred in rejecting the claim of the petitioner
on both counts.

8. Sri Hem Pratap Singh, learned
Advocate appearing for the University, on
the contrary, argues that there being no
executive
council
functioning in the
University since November, 2020, claim of
3 All. Dr. Bhaktiputra Rohtam Vs. Banaras Hindu University & Ors.
683
the petitioner even after being matured to
be considered for promotion as Professor,
could not be given consideration as every
such appointment and promotion was
required to be approved by the executive
council in the first instance before
consequential effective order was passed by
the Vice Chancellor. He submitted that
executive council of the University was a
statutory body and vested with all such
powers, in absence of which, and there
being
no
order
by
the
competent
government authorising Vice Chancellor to
pass orders or to act on behalf of the
executive council, prior to the year 2023,
the Vice Chancellor was justified in not
issuing any order promoting the petitioner.
He further submitted that petitioner having
retired, now could not be benefited as no
more promotional avenue was available to
adjust a retired teacher. He submitted that
the teacher to be considered for promotion
under CAS of the U.G.C. Regulations had
to be a sitting member of the faculty and
there was no provision to give any notional
promotion to a retired teacher under CAS.
He further submitted that under the CAS,
there
was
no
sanctioned
substantive
vacancy as such and the post and
designation was co terminus. In support of
his above argument, Sri H.P. Singh took the
Court to relevant provisions of Banaras
Hindu University Act, 1915 which vide
Section 10 provided powers to be exercised
by the executive council. Section 10 is
reproduced as under:-

10. Executive Council.-(1) The
Executive Council shall, subject to the
control of the Visitor, be the executive body
of the University and shall have charge of
the management and administration of the
revenue and property of the University and
the conduct of all administrative affairs of
the University not otherwise provided for.
(2) Subject to the provisions of this Act, the
Executive Council shall exercise such other
powers and perform such other duties as
may be conferred or imposed on it by the
Statutes or the Ordinances.

9. On the point of second relief, Sri
H.P. Singh argued that Regulation 2.1
carried a proviso also according to which,
re-employment of a teacher was required to
be
strictly
in
accordance
with
the
guidelines prescribed by the U.G.C. from
time to time. He submitted that as per the
U.G.C. guidelines, only a professor could
be re-employed as a teacher. In this regard,
he took the Court to the Model Guidelines
of
U.G.C.
for
re-employment
of
superannuated teachers on 15.02.2008
annexed as Annexure-CA-2 to the counter
affidavit in which vide Clause 3 of the
guidelines of U.G.C., it was the Professor
who is only entitled for re-employment.
Clause 3 of the U.G.C. guidelines runs as
under:

"3. Eligible Category:

The category of superannuated
teachers eligible for re-employment shall
be:

a) Professor only, in the case of
Universities; and,

b)
Professors,
Readers
and
Lecturers (Selection Grade) only, in the
case of Colleges."

10. Sri Purunendu Kumar, learned
Advocate appearing for U.G.C. adopted the
arguments of Sri H.P. Singh relating to the
two reliefs claimed for by the petitioner. He
also relied upon the U.G.C. guidelines of
2015 and the U.G.C. Regulations, 2018.
However, upon a pointed query being
made, he could not explain as to what was
the source of power available under the
U.G.C. Act to frame guidelines, inasmuch
684 INDIAN LAW REPORTS ALLAHABAD SERIES
as, he could no show any provision from
where it could be inferred that U.G.C.
Guidelines would prevail even after the
U.G.C. regulations had been framed and
enforced.

11. Having heard learned counsel for
the respective parties, their arguments
raised across the bar and having perused
the records, the Court finds two points to be
arising in the case for consideration on the
legal pleas as advanced on behalf of the
rival parties:

(A) whether the petitioner would
be entitled to be promoted notionally also
after retirement under the CAS in the event
university is found to have faulted with the
career of the petitioner by denying his due
promotion as Professor for no justifiable
reason; and

(B) whether as per the U.G.C.
Regulation 2.1, petitioner having retired as
Associate Professor was also entitled for
re-employment and that proviso to the said
regulation would be limited to applying the
guidelines to the extent provision is silent
on general principles that proviso would
not take away or dilute the mandate
contained under the principal provision.

12. Before dealing with the two points
framed above, I would like to indicate here
the admitted fact positions between the
parties:

(i) Petitioner's status as Associate
Professor in the department of Dharmagam,
Faculty of Sanskrit Vidya Dharm Vigyan is
not
questionable
and
also
that
his
entitlement to become Professor got
matured on 04.11.2021 under CAS;

(ii)
Petitioner
also
moved
necessary application for consideration of
his candidature for his promotion as
Professor in the department on 04.11.2021
which was received on 05.01.2022 in the
concerned cell of the University dealing
with promotions under CAS and the
concerned designated cell did not process
the papers only on the ground that there
was no Executive Council; and

(iii) The Executive Council is not
functioning
in
the
university
since
November, 2020 and it is now very recently
that the Central Government has issued
circular directing the Vice Chancellor to
take up the task of executive council by
exercising power under Section 7-C(5) of
the B.H.U. Act, 1915.

13. Coming to point (A) i.e. on the
question of promotion of the petitioner and
his entitlement and that too after his
attaining age of superannuation, it is
required to be looked into as to what were
the rules of promotion under CAS and what
procedures were prescribed there and
whether it was by way of seniority with
certain statutory period of service that
promotion was to be offered in routine way
under the CAS or it was by way of
selection. In the event of former, petitioner
may have a claim to be given notional
promotion and consequential benefits but in
the event of promotion by selection, it may
not be feasible now to consider the
candidature of a candidate like petitioner
after his attaining age of superannuation
more especially in the circumstances, when
petitioner did not file any petition seeking
such promotion prior to his superannuation.

14. In order to find answer, I proceed
to examine the relevant provisions of the
U.G.C. Regulations in the first instance.
There is no dispute or quarrel about the
U.G.C. Regulations 2018 that provide for
promotion under CAS. The Regulations do
provide for assessment of a teacher to be
promoted on the basis of his self appraisal
3 All. Dr. Bhaktiputra Rohtam Vs. Banaras Hindu University & Ors.
685
report and over all performance for which a
teacher is to provide documents in support
of his claim. Regulations 6.1. and 6.2 and it
sub-regulations are there in this regard and
are, accordingly, reproduced hereinunder:

" 6.1 Assessment Criteria and
Methodology:

a) Tables 1 to 3 of Appendix II
are applicable to the selection of Assistant
Professors/
Associate
Professors/
Professors/ Senior Professor in Universities
and Colleges;

(b) Table 4 of Appendix II is
applicable to Assistant Librarians/ College
Librarians and Deputy Librarians for
promotion under Career Advancement
Scheme; and

(c) Table 5 of Appendix II is
applicable to Assistant Directors/ College
Director of Physical Education sports and
Deputy Directors/ Directors of Physical
Education and Sports for promotions under
Career Advancement Scheme.

6.2 The constitution of the
Selection
Committee
and
Selection
procedure as well as the Assessment
Criteria and Methodology for the above
cadres, either through direct recruitment or
through Career Advancement Scheme, shall
be in accordance with these Regulations."

15. UGC Regulations, 2018 vide
Regulation 5 provide for constitution of
selection committee and guidelines for
selection procedure. Regulation 5.1(X)
provides for the Screening-cum-Evaluation
Committee for the purposes of promotion
under CAS for Assistant Professors,
Associate Professors Regulation 5.1(X) is
reproduced hereinunder:

"X.
The
"Screening-cumEvaluation
Committee"
for
CAS
promotion
of
Assistant
Professors/
equivalent cadres in Librarians/Physical
Education and Sports from one level to
the other higher level shall consist of:

A. For University teachers:

i) The Vice-Chancellor or his/her
nominee shall be the Chairperson of the
Committee;

ii)The Dean of the Faculty
concerned;

iii) The Head of the Department/
Chairperson of the School; and

iv) One subject expert in the
subject concerned nominated by the ViceChancellor from the University panel of
experts."

16. Clause (I) of Regulation 6.3
provides a candidate to apply in advance
from the due date and the university is
required
to
initiate
process
of
his
screening/selection
and
complete
the
process within six months. Vide clause
(III), the CAS promotion from lower stage
to higher stage is to be done by Screeningcum-Evaluation Committee as provided
under Table 1 of Appendix-II. The
Regulations
also
provide
that
CAS
promotion
criterion
from
Associate
Professor
to
Professor
would
be
'satisfactory'
or
'good'
in
Annual
Performance Assessment report of at least
last three years assessment period as per
Table 1 Appendix-II and at least 110
research score, as per Appendix-II Table 2.
The
promotion
of-course
is
to
be
recommended by the selection committee
that is to be constituted for this purpose
under the U.G.C. Regulations. Regulation
6.3 is reproduced hereinunder:

"6.3 The criteria for promotions
under Career Advancement Scheme laid
down under these Regulations shall be
effective from the date of notification of
these Regulations. However, to avoid
686 INDIAN LAW REPORTS ALLAHABAD SERIES
hardship to those faculty members who
have already qualified or are likely to
qualify
shortly
under
the
existing
regulations, a choice may be given to them,
for being considered for promotions under
the existing Regulations. This option can be
exercised only within three years from the
date of notification of these Regulations.

I. A teacher who wishes to be
considered for promotion under the CAS
may
submit
in
writing
to
the
university/college, within three months in
advance of the due date, that he/she fulfils
all the requirements under the CAS and
submit
to
the
university/college
the
Assessment Criteria and Methodology
Proforma as evolved by the university
concerned supported by all credentials as
per
the
Assessment
Criteria
and
Methodology guidelines set out in these
Regulations. In order to avoid any delay in
holding the Selection Committee meetings
for various positions under the CAS, the
University/College may initiate the process
of screening/selection, and complete the
process within six months from the receipt
of application. Further, in order to avoid
any hardship, the candidates who fulfil all
other
criteria
mentioned
in
these
Regulations, as on and till the date on
which these regulations are notified, can be
considered for promotion from the date, on
or after the date, on which they fulfil these
eligibility conditions.

II.
The
Selection
Committee
specifications as contained in Clauses 5.1
to 5.4 shall be applicable to all direct
recruitments of faculty positions and
equivalent cadres and Career Advancement
promotions from Assistant Professor to
Associate
Professor,
from
Associate
Professor to Professor, Professor to Senior
Professor (in University) and for equivalent
cadres.

III. The CAS promotion from a
lower stage to a higher stage of Assistant
Professor shall be conducted through a
"Screening-cum-Evaluation
Committee",
following the criteria laid down in Table1
of Appendix II.

IV. The promotion under the CAS
being a personal promotion to a teacher
holding a substantive sanctioned post, on
his/her superannuation, the said post shall
revert back to its original cadre.

V. For the promotion under the
CAS, the applicant teacher must be on the
role
and
in
active
service
of
the
University/College
on
the
date
of
consideration by the Selection Committee.

VI. The candidate shall offer
himself/herself
for
assessment
for
promotion, if he/she fulfils the minimum
grading
specified
in
the
relevant
Assessment Criteria and Methodology
Tables, by submitting an application and
the required Assessment Criteria and
Methodology Proforma. He/she can do so
three months before the due date. The
university shall send a general circular
twice a year, inviting applications for the
CAS
promotions
from
the
eligible
candidates.

i) If a candidate applies for
promotion on completion of the minimum
eligibility period and is successful, the
date of promotion shall be from that of
minimum period of eligibility.

ii) If, however, the candidate finds
that he/she would fulfils the CAS promotion
criteria, as defined in Tables 1, 2, 4, and 5
of Appendix II at a later date and applies
on that date and is successful, his/her
promotion shall be effected from that date
of the candidate fulfilling the eligibility
criteria.

iii) The candidate who does not
succeed in the first assessment, he/she shall
have to be re-assessed only after one year.
3 All. Dr. Bhaktiputra Rohtam Vs. Banaras Hindu University & Ors.
687
When such a candidate succeeds in the
eventual assessment, his/her promotion
shall be deemed to be one year from the
date of rejection.

VII Regarding the cases pending
for
promotions
from
one
Academic
Level/Grade Pay to another Academic
Level/Grade
Pay
under
the
Career
Advancement Scheme provided under the
UGC
Regulations
on
Minimum
Qualifications for Appointment of Teachers
and other Academic Staff in Universities
and Colleges and Measures for the
Maintenance of Standards in Higher
Education
2010
and
its
subsequent
amendments, the teachers shall be given
the option to be considered for the
promotion from one Academic Level/Grade
Pay to another Academic Level/Grade Pay
as per the following:

(a)
The
teachers
shall
be
considered
for
promotion
from
one
Academic Level/Grade Pay to another as
per the CAS under these Regulations.

OR

(b) The faculty members shall be
considered for the promotion from one
Academic Level/Grade Pay to another as
per the CAS provided under the UGC
Regulations on Minimum Qualifications for
Appointment
of
Teachers
and
other
Academic
Staff
in
Universities
and
Colleges
and
Measures
for
the
Maintenance of Standards in Higher
Education 2010 and its amendments with
relaxation in the requirements of Academic
Performance
Indicators
(API)
based
Performance
Based
Appraisal
System
(PBAS) upto the date of notification of
these Regulations. The relaxation in the
requirements of Academic Performance
Indicators (API) based Performance Based
Appraisal System (PBAS) upto the date of
notification of these Regulations for the
promotion from one Academic Level/Grade
Pay to another under CAS as provided in
UGC
Regulations
on
Minimum
Qualifications for Appointment of Teachers
and other Academic Staff in Universities
and Colleges and Measures for the
Maintenance of Standards in Higher
Education 2010 and its amendments, is
defined as under :

i. Exemption from scoring under
Category I, as defined in Appendix III of
said above mentioned UGC Regulations on
Minimum Qualifications for Appointment of
Teachers and other Academic Staff in
Universities and Colleges and Measures
for the Maintenance of Standards in Higher
Education 2010 and its amendments
including University Grants Commission
(Minimum Qualifications for Appointment
of Teachers and other Academic Staff in
Universities and Colleges and Measures
for the Maintenance of Standards in Higher
Education) (4th Amendment), Regulations,
2016, for faculty and other equivalent
cadre positions. ii. Scoring in Category II
and Category III for faculty and other
equivalent cadre positions shall be as
provided for in the UGC Regulations on
Minimum Qualifications for Appointment of
Teachers and other Academic Staff in
Universities and Colleges and Measures
for the Maintenance of Standards in Higher
Education
2010
with
the
following
combined minimum API score requirement
for Category II and Category III taken
together, as mentioned below."

17. Thus, a candidate in the first
instance as per Clause (VI) of Regulation
6.3 would make an application along with
her/his self assessment for promotion by
submitting application upon a required
assessment
criteria
and
methodology
proforma three months before due date and
it is thereafter that the papers are completed
and placed before the selection committee.
688 INDIAN LAW REPORTS ALLAHABAD SERIES
The claim of the petitioner is that he moved
an application on 04.11.2021 when his case
matured and that application was received
in the Selection and Assessment Cell of the
University
on
05.01.2022
but
the
University failed to constitute any selection
committee as contemplated under the
U.G.C. Regulations possibly for there
being
no
executive
council
in
the
university. The U.G.C. Regulations do
provide or contemplate a situation in the
event an application is moved on the date
the promotion is due, the same could not be
considered as required then there has to be
a process and procedure to be followed and
the eligibility criterion as given in Clause
C(IV) of U.G.C. Regulation 6.4 is
reproduced hereinunder:

"C.
Career
Advancement
Scheme (CAS) for University teachers

IV.
Associate
Professor
(Academic
Level
13A)
to
Professor
(Academic Level 14)

1) An Associate Professor who
has completed three years of service in
Academic Level 13A.

2) A Ph.D Degree in the subject
concerned/allied/relevant discipline.

3) A minimum of ten research
publications in the peer-reviewed or UGClisted journals out of which three research
papers should have been published during
the assessment period.

4) Evidence of having guided at
least one doctoral candidate.

5) A minimum of 110 Research
Score as per Appendix II, Table 2.

CAS Promotion Criteria:

A teacher shall be promoted if;

i) He/she gets a 'satisfactory' or
'good' grade in the annual performance
assessment reports of at least two of the
last three years of the assessment period, as
per Appendix II,Table 1, and at least 110
research score, as per Appendix II,Table 2.

ii)
The
promotion
is
recommended by a selection committee
constituted in accordance with these
Regulations."

18. Except for the eligibility clause
which every candidate seeking promotion
under CAS is required to meet the only
other parameter is 'satisfactory' or 'good'
grade in annual performance assessment
reports of at least 3 to 5 years as per table
provided under the Appendix-II. It is, thus,
the Screening-cum-Evaluation Committee
which forwards the report for the purposes
of according promotion.

19. In the total circumspect of Rules
that are there provided for under CAS, it is
clear that this rule of promotion is more by
seniority than by selection and, therefore, if
the executive council was not there and the
Vice Chancellor was of the view that
papers of the petitioner had reached to the
assigned cell designated for the purposes of
processing of evaluation, it was required
for the designated cell to have processed
the paper. Petitioner was very much active
member of the service if Screening-cumEvaluation Committee had met at the
relevant point of time as per clause (I) of
Regulation 6.3.

20. Having not done so upon lame
excuses that there was no executive council
functional in
the
university, in
my
considered view, the University was not
justified in denying promotion to the
petitioner that was due to him. The power
could have been exercised by the Vice
Chancellor under Section 7-C (5) meeting
the requirement as an urgency. It is a
statement
made
on
behalf
of
the
respondent- University that till date there
3 All. Dr. Bhaktiputra Rohtam Vs. Banaras Hindu University & Ors.
689
was no executive council and now the
Central Government has issued an order
that Vice Chancellor will act in its behalf.

21. Provisions as contained under
Section
7-C(5)
of
Banaras
Hindu
University Act,
1915,
is
reproduced
hereinunder:

"7C(5). If, in the opinion of the
Vice-Chancellor, any emergency has arisen
which requires immediate action to be
taken, the Vice-Chancellor shall take such
action as he deems necessary and shall
report the same for approval at the next
meeting to the authority which, in the
ordinary course, would have dealt with the
matter:

Provided that, if the action taken
by the Vice-Chancellor is not approved by
the authority concerned, he may refer the
matter to the Visitor, whose decision
thereon shall be final.

Provided further that, where any
such action taken by the Vice-Chancellor
affects any person in the service of the
University, such person, shall be entitled to
prefer, within thirty days from the date on
which he receives notice of such action, an
appeal to the Executive Council.

22. In my considered view, it was not
necessary for the government to have
passed an order asking the Vice Chancellor
to act on behalf of the executive council in
purported exercise of its power under
Section 7-C (5). The provisions as
contained under Section 7-C(5) were very
much there and, therefore, the power could
have been exercised even earlier by the
Vice Chancellor. Petitioner has really,
therefore, suffered for no fault on his part
except for lack of formalities that were to
be accomplished by the University through
its
screening
committee.
The
Vice
Chancellor had a free hand to form a
screening committee exercising power
under Section 7-C(5) and if he chose not to
exercise this power, the petitioner cannot be
made to suffer.

23. Thus, what here comes out to be a
case where petitioner was not at fault and
had
the
selection
committee
been
constituted and considered the assessment
and performance of petitioner of last three
years, he would have been promoted.
Under the order impugned, the ground
taken is that selection committee and the
interview could not have been held for
promotion from Associate Professor to
Professor for certain reasons but what
reasons were there is not disclosed and only
this much has been stated that there has
been no constitution of executive council
after June, 2021 when the term of the
erstwhile executive council came to end.
The entire rules also disclose very clearly
that there is no selection criterion as such
under the CAS If the Assessment criterion
is sound as per the methodology tables
provided under the Rules and the eligibility
criterion is fulfilled as per Clause (iv) of
Regulation 6, a candidate, who is eligible,
would be promoted under the CAS from
the date of eligibility. There is no
prescribed procedure for holding selection
as such or interview for a candidate to
participate regarding his knowledge and
expertise etc. In the circumstances, it can
be taken to be that under the CAS, maturity
of claim is only conditioned by self
appraisal and assessment which is done on
the parameters prescribed under the table.

24. In the case of Union of India &
anr. vs Manpreet Singh Poonam & ors;
2022 LiveLaw (SC) 254, it was held that
mere existence of vacancy will not create a
right in favour of an employee for
690 INDIAN LAW REPORTS ALLAHABAD SERIES
retrospective promotion and in which the
clearance of a candidate is dependent upon
the selection process. The Court in that
case, therefore, observed that if rules
contemplate promotion on a vacancy for
which a candidate has to pass through
selection process such promotion cannot be
given retrospectively from the date of
actual vacancy arose. The Court also
rejected the case of one Roshan Singh in
the case of State of Uttar Pradesh & ors v.
Roshan Singh & ors; 2006 (13) SCC 661
for
promotion
retrospectively
after
retirement.
The
Court
in
that
case
distinguished the judgment in the case of
Bangali Prasad Sharma v. State (Writ
Petition No.13240 (SS) of 1990 decided on
03.08.1995
by
Lucknow
Bench
of
Allahabad High Court) on the ground that
writ petition had been filed prior to his
retirement.

25. However, in the present case, I
find that since there to be no selection
process as such and the university only
failed
to
constitute
Screening-cumEvaluation Committee. Thus, career of the
petitioner got jeopardised for none of his
fault more especially, in the circumstances,
when there was no question of requirement
of any existing vacancy. It is upon maturity
of claim that a candidate is required to
undergo process of self assessment and
assessment by a duly constituted screening
committee. The university seems to have
not considered promotion for no justifiable
reasons. There may not have been a duly
constituted executive council in existence
but that power could have been exercised
by the Vice Chancellor under Section
7(c)(5).

26. As the title of committee,
Screening-cum-Evaluation
Committee
discloses, the only work is to make
assessment
of
previous
work
of
a
candidate. CAS is a scheme to remove
stagnation and give promotion to a teacher
upto the highest level of professor upon
achieving certain years of service at every
stage in hierarchy. CAS scheme is not
dependent upon the creation of post. It
gives designation and pay scale and with
further promotion and retirement, post
being co terminus stands abolished.

27. Just because Central Government
has now issued a circular that Vice
Chancellor would exercise such powers as
ifwas not there. In fact,

it was always with the Vice
Chancellor and he should have exercised
this power. The University's executive
council is very important component in the
administrative set up and since majority of
the administrative orders are passed by the
Vice Chancellor after the matter is already
through the executive council, the Vice
Chancellor cannot be permitted to just sit
back and relax for there being no executive
council.
When
the
statute
itself
contemplates a situation and any such
eventuality appears when the executive
council has run out its term, Vice
Chancellor will have to exercise power by
constituting selection committee for all
purposes. It is unfortunate that the vice
Chancellor sat idle in the matter. The power
was there and the Vice Chancellor needed
no further executive directions from the
central government. It is good that now the
central government has now passed the
order.

28. In the circumstances, in my
considered view, the petitioner's claim for
promotion from Associate Professor to
Professor was wrongly not considered and
the matter remained kept pending for no
justifiable reasons.
3 All. Dr. Bhaktiputra Rohtam Vs. Banaras Hindu University & Ors.
691

29. Thus, petitioner is held entitled to
be given notional promotion w.e.f. the date
it has become due in order to give him the
benefits and advantages in the fixation of
pay and final retirement dues provided ofcourse his work and conduct at the relevant
time as submitted him gets through a
Screening-cum-Evaluation Committee and
with the approval of Vice Chancellor.
However, petitioner would not be entitled
to for the actual payment of salary as he is
not working as a Professor during the
period in question.

30. Coming to the second point
regarding
petitioner's
claim
for
reemployment, learned counsel for the
petitioner in this regard placed reliance
upon the UGC Regulation 2.1 which
provided for re-employment to be offered
to Assistant Professor, Associate Professor,
Professor and Senior Professor after
superannuation but the UGC regulations
also carry a proviso to the regulations that
every re-employment shall be strictly in
accordance with the guidelines prescribed
by the UGC from time to time. Now the
question that arises for consideration of the
Court is, as to whether the proviso would
take away the mandate contained under the
principal
regulations
2.1.
U.G.C.
Regulation 2.1 are reproduced hereunder:

"2.1 Subject to the availability of
vacant positions and fitness, teachers, such
as Assistant Professor, Associate Professor,
Professor and Senior Professor only, may
be re-employed on contract appointment
beyond the age of superannuation, as
applicable to the concerned University,
college and Institution, up to the age of
seventy years.

Provided further that all such reemployment shall be strictly in accordance
with the guidelines prescribed by the UGC,
from time to time.

31. It has been argued on behalf of
Union of India that since the guidelines
have been issued by the UGC did provide
for re-employment to Professor only and
proviso says that re-employment has to be
strictly in accordance with the guidelines,
both have to be read together in order to
find out the solution, whereas it has been
argued on behalf of the petitioner that,
when the substantive provision provides for
re-employment to Assistant Professor,
Associate Professor, Professor and Senior
Professor then merely because the proviso
refers to guidelines, it would not take away
the main substantive provision.

32. It is submitted that regulations are
silent about the manner and method of reemployment and so for this limited
purpose, the UGC guidelines may have to
be followed. In order to find answer to the
question and to appreciate the arguments
advanced by the rival parties, it becomes
necessary to find out as to under which
provision of law, the guidelines are framed
by the U.G.C. The U.G.C. Act, 1956 does
provide for power of the commission to
frame regulations but does not provide for
framing of any guidelines. Second 26 of the
UGC Act, 1956 is reproduced hereinuder:-

26. (1) The Commission may, by
notification in the Official Gazette, make
regulations consistent with this Act and
the rules made thereunder-

(a) regulating the meetings of the
Commission
and
the
procedure
for
conducting business thereat;