# Dr. M.P. Joshi, Professor & others v. University of Kumaon, Nainital & others

- **Citation:** (2001) 1 ILRA 237
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-04-04
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-m-p-joshi-professor-others-v-university-of-kumaon-nainital-others-39605
- **Pages:** 7

## Text

1All] Dr. M.P. Joshi, Professor & others V. University of Kumaon, Nainital & others
237
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By the Court

1. Petitioners who are professors in
different department of University of
Kumaon, Nainital, have approached this
Court
under
Article
226
of
the
Constitution for the relief of a writ of
certiarari quashing the Government order
dated 4.4.2000 and the consequential
order dated 2.9.2000 (annexures 8 and 9
respectively).
Impugned
Government
Order dated 4.4.2000, though addressed to
Finance Officer, Lucknow University,
Lucknow in response to his letter dated
28.2.2000 encapsulates there is the two
fold decision of the Government Order
dated 27.9.1994 will be effective from the
date of talking over the charge and not
earlier; secondly, as to cancellation of
paragraph 5 of the earlier Government
Order dated 27.9.1994. So far as the order
contained in the letter dated 2.9.2000
(annexure no. 9 to the petition) is
concerned, the same is in fact a notice to
the petitioner T.C. Pant, calling upon him
to show cause as to why the double
promotion granted to him first on the post
of Reader and later on the post of
Professor, be not rescinded the same
being in antogonism of the Government
Orders dated September 27, 1994 and
4.4.2000. Similar notices are said to have
been issued to other petitioners as well.
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
238
2. We have heard Sri V.B. Singh,
Senior Advocate assisted by Sri P.S.
Baghel for the petitioners, Sri M.C.
Tripathi for the respondents 1 and 2 and
Standing Counsel for the State authorities.

3. The foremost questions that call
for determination in this case are: firstly,
whether a Reader appointed as such by
promotion from the post of lecture under
personal promotion scheme envisioned
under Section 31-A of the Act is entitled
to promotion to the post of Professor?;
and
secondly,
whether
personal
promotion to the teachers of University
given under Section 31-A of the U.P.
State Universities Act, 1973 is to take
effect from the date of taking over the
charge on the post of Reader or Professor,
as the case may be, or with effect from the
date, the Lecturer or the Reader, as the
case may be, becomes eligible for being
considered
for
grant
of
personal
promotion to the post of Reader or
Professor, as the case may be? Section 31A of the Act being relevant is excerpted
below :

"31-A - Personal promotion to
Teachers
of
University:
-
(1)
Notwithstanding
anything
to the
contrary contained in any other
provision of this Act, a Lecturer or
Reader
with
the
University
substantively
appointed
under
Section 31, who has put in such
length of service and possesses such
qualifications, as may be prescribed,
may be given personal promotion,
respectively to the post of Reader or
Professor.

(2) Such personal promotion shall be
given on the recommendation of the
Selection
Committee,
constituted
under clause (a) of sub-section (4) of
Section 31 in such manner and
subject to such condition as may be
prescribed.

(3) Nothing contained in this section
shall effect the post of the teachers of
the University to be filled by direct
appointment in accordance with the
provisions of Section 31."

4. Section 31-A was inserted in the
Act by U.P. Act No. 9 of 1985 with effect
from 10.10.1984. It envisages that a
Lecturer
or
Reader
substantively
appointed under Section 31, who has put
in such length of service and possesses
such qualification as may be prescribed,
may
be
given
personal
promotion
respectively to the post of Reader or
Professor. The requisite length of service
and qualifications are prescribed in the
Statute 11.12 B inserted by notification
no.
1126/XV-1-85-9(6)80
dated
28.3.1985 in the first Statute of Kumaon
University and the same being germane of
the controversy is quoted below:

"11.12-b
(1)
Notwithstanding
anything to the contrary contained in
Statute 11.02 or in any other Statute
the following categories of teachers
of the University shall be eligible for
personal promotion to the post of
Readers or Professors, as the case
may be: -

Readers post -
Lecturers who are, Ph.D. and have
put in at least 13 years fulltime
continuous service, as such.
(ii) Lecturers who are not Ph.D.
but have put in at least 16 years full
time continues services, as such.

Professors post -
1All] Dr. M.P. Joshi, Professor & others V. University of Kumaon, Nainital & others
239
Readers who have put in at least 10
years fulltime continuous service as
such.
Explanation - Reader shall mean a
teacher who has worked as Reader in
a University.

(2) The service, referred to in clause
(1), must have been rendered on an
approved post -
in permanent, temporary or ad-hoc
capacity;
in this University or in any other
University, Post Graduate or UnderGraduate college or Institute, so
however that at least five years
permanent service must have been
rendered in this University after
regular
selection
through
the
selection
committee
constituted
under clause (a) of sub-section (4) of
Section 31 of the Act.

(3) The teacher of the University
who
is
eligible
for
personal
promotion shall submit a SelfAssessment Report in the proforma
given in Appendix E, containing
information
relating
to
his
satisfactory work, to the Registrar.

Explanation - Satisfactory work
shall mean the work done with
reference to the work expected from
a
number
of
the
University
Regulations, Statutes or Ordinances.

(4)
The
Selection
Committee,
constituted under clause (a) of the
sub-section (4) of Section 31 of the
act,
shall
consider
the
SelfAssessment Report, service Record
(including Character Roll) and such
other relevant records as may be
placed before, or as considered
necessary, by, it. The meeting of the
Selection Committee for considering
cases of personal promotion shall be
held at least once every year.
(5) The Selection Committee shall
submit its recommendation to the
Executive Council and the Executive
Council
shall,
subject
to
the
provisions
of
clause (6), grant
personal promotion on the basis of
such recommendation.
(6)
The
benefit
of
personal
promotion shall be admissible to
lecturers for promotion to the post of
Reader only and the Reader so
appointed by Promotion shall not be
entitled to promotion on the post of
Professor.
(7) Personal promotion on the post of
Reader or Professor, as the case may
be, shall take effect from the date of
taking over charge of the said post.
(8)
As
a
result
of
personal
promotion,
there
shall
be
no
reduction in the work load of the
teacher of the University.
(9) In case a teacher of the
University is not found suitable for
personal promotion he may offer
himself again for such Promotion
after two years and he shall be
considered
by
the
Selection
Committee along with the teacher of
the
University
who
have
since
become eligible.
(10) In case the Selection Committee
does not find a teacher of the
University
suitable
for
personal
promotion, it shall state the reasons.
(11) (i) The post of Reader or
Professor,
to
which
personal
promotion is made, shall be deemed
to temporary addition to the cadre of
Professor or Reader, as the case may
be, and the post shall stand abolished
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
240
on the incumbent ceasing to occupy
it.
(ii) On the Reader ceasing to occupy
the post of Professor to which he was
given
personal
promotion,
new
appointment, if any, shall be made on
the post of Reader and similarly on
the Lecturer ceasing to occupy the
post of Reader, new appointment, if
any, shall be made on the post of
Lecturer."

5. A conspectus of Section 31-A of
the Act and Statute 11.12 B of the
Statutes would evince that the benefit of
personal promotion is admissible only
once. Personal promotion under Section
31-A of the Act is given on the
recommendation
of
the
Selection
Committee under clause (a) of subsection
(4) of Section 31 in such manner and
subject to such condition as may be
prescribed, to a Lecturer or Reader, as the
case may be, "Who has put in such length
of
service
and
passesses
such
qualifications as may be prescribed".
Statute
11.12
B
prescribes
the
manner/procedure for grant of personal
promotion as also the conditions subject
to which it is granted. One of the
conditions subject to which personal
promotion is granted is visualised by
clause (6) of Statute 11.12 B which reads
as under: -

" (6) The benefit of personal
promotion shall be admissible to
lecturers for promotion to the post of
Reader only and Reader so appointed
by Promotion shall not be entitled to
promotion on the post of Professor".

6. The language employed in clause
(6) of Statute 11.12 B is clear and
unambiguous. Double promotion under
the scheme of Section 31-A of the Act is
not comprehended. Petitioners who were
concededly given benefit of personal
promotion from the post of Lecturer to the
post
of
Reader in their respective
disciplines were not entitled to further
promotion to the post of Professor under
the scheme visualised by Section 31-A of
the Act read with Statute 11.12 B of the
Statutes. Double promotion under Section
31-A of the Act is not comprehended that
is to say a Reader appointed as such under
Section 31-A is not entitled to further
promotion to the post of Professor. In the
circumstances no exception can be taken
to the impugned orders.

7. Personal promotion can not be
claimed as of right merely because the
teacher concerned is passessed of the
requisite qualifications and has put in the
prescribed length of service. A teacher of
University who is eligible for personal
promotion under Section 31-A of the Act
is exacted to submit self-assessment
report in the proforma given in Appendix
'E' furnishing information respecting his
satisfactory work to the Registrar. The
term satisfactory work as nailed down in
the Explanation to Statute 11.12 B (3)
signifies the work done with reference to
the work expected from a member of the
University under the Act, Rules and
Regulations. Executive Council is clothed
with
the
power
to
grant
personal
promotion
on
the
basis
of
recommendation made by the Selection
Committee. The selection, in our opinion,
is not an empty ritual or formality to be
gone
into.
Selection
for
personal
promotion involves objective assessment
to be made by the Selection Committee of
satisfactory work of the concerned teacher
on the basis of self-assessment report
which is required to be submitted in the
1All] Dr. M.P. Joshi, Professor & others V. University of Kumaon, Nainital & others
241
proforma given in Appendix 'C'. Mere
fact that a teacher is eligible and
possessed of the requisite qualification for
the post of Reader or Professor, as the
case may be, is not enough to grant
personal promotion unless the Selection
Committee, on the basis of appraisal of
satisfactory
work
of
the
teacher
concerned,
finds
him
suitable
and
recommends to the Executive Council for
grant of personal promotion. In case the
work of a teacher who is eligible and
possessed of the requisite qualifications
for grant of personal promotion, is not
found by Selection Committee to be
satisfactory he may be denied personal
promotion on the ground of unsuitability.

8. The apart, personal promotion
from the post of Lecturer to the post of
Reader and from the post of Reader to the
post of Professor is admissible only to
those eligible and qualified teachers who
opt for personal promotion in accordance
with paragraph 9 of the Government
Order dated September 10, 1987. The
dividend of personal promotion will not
be forthcoming to teachers who are
covered by Career Advancement Scheme.
It would be evident both from clause (9)
of Statute 11.12 B and para 7 of the
Government order dated September 27,
1994 that in case a teacher of University
is
not
found suitable for personal
promotion, he may offer himself again for
such promotion after two years and upon
such offer being given, the case of such
teacher "shall be considered by the
Selection Committee again alongwith the
teachers of the University who have since
become eligible". Such promotion, it has
been expressly provided in paragraph 6 of
the Government Order dated September
27, 1994, and clause (7) of Statute 11.12
B of the Statute, shall have effect from the
date of taking over the charge of the post
concerned. The expression taking over
charge of the said post refers to taking
over charge after grant of personal
promotion on the basis of "such
recommendation".
The
term
"such
recommendation" means recommendation
by the Selection Committee as the
concerned teacher being suitable for grant
of personal promotion to the Post of
Reader or Professor, as the case may be.

9. The submission made by Sri V.B.
Singh, Senior Advocate that a teacher on
being found suitable for grant of personal
promotion under Section 31-A of the Act
is entitled to be promoted with effect from
the date a teacher becomes eligible can
not be countenanced except on pains of
violating express & stipulation in Statute
11.12 B (7) of the First Statutes that
personal promotion shall have effect from
the date of taking over charge on the post
concerned and the rules of inter-seniority
embodied in Statute 18.05 (b) according
to which seniority of teachers in the same
cadre is to be determined on the basis of
the length of continuous service in
substantive
capacity
in
the
order.
Intention of the Legislature is expressed
in clear and unambiguous language. There
is no room for any speculation as to what
was the intention of the law makers. In
this context it would be apt and
eliminating
to
quote
the
following
passage from the "Principles of Statutory
Interpretation" by justice G.P. Singh, 6th
Edition, page 33:

"When the words of a statute are
clear, plain or unambiguous, i.e. they
are reasonably susceptible to only
meaning
irrespective
of
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
242
consequences. 1The rule stated by
Tindal, C.J. in Sussex Peerage case is
in the following form: "If the words
of the statute are in themselves
precise and unambiguous, then no
more can be necessary than to
expound those words in their natural
and ordinary sense. The words
themselves do alone in such cases
best
declare
the intent of the
lawgiver.2 The rule is also stated in
another form "when a language is
plain and unambiguous and admits of
only one meaning no question of
construction of a statute arises, for
the Act Speaks for itself".3 the results
of the construction are then not a
matter for the court,4 even though
they may be strange or surprising,5
unreasonable
or
unjust
or
oppressive.6 "Again and again", said
VISCOUNT SIMONDS, L.C. "this
Board
has
insisted
that
in
constructing enacted words we are
not
concerned
with
the
policy
involved or with the results, injurious
or otherwise, which may follow from
giving effect to the language used"7
And said Gajendragadkar, J. ""If the
words used are capable of one
construction only then it would not

1 Nelson Motis V. Union of India, AIR 1992
Supreme Court 1981, p. 1984
2 Sussex Peerage case, (1844) 11 Constitution
of India & F85, p. 143
3 State of Uttar Pradesh V. Vijay Anand
maharaj, Air 1963 Supreme Court 946.
4 A.W. Meads v. Emperor, AIR 1945 FC 21,
p. 23.
5 London Brick co. Ltd. V. Robinson, (1943)
1 All Er 23 (HL), p. 26.
6 IRC V. Hinchy, (1960) 1 All ER 505
(HL) pp. 508-512.
7 Emperor V. Benoarilal Sarma, AIR 1945 PC
48, p. 53.
be open to the courts to adopt any
other hypothetical construction on
the ground that such construction is
more consistent with the alleged
object and policy of the Act.8

10. The ratio of Division Bench
decision in Dr. Ashok Kumar Kalia Vs.
Chancellor,
Lucknow
University
and
others9 reliance on which has been placed
by the learned counsel for petitioners, is
not
quotable
as
binding
precedent
inasmuch on the same appears to have
been decided without considering the
effect of Clause (7) of Statute 11.12 B and
para 6 of the Government Order dated
September 24, 1994. The decision appears
to be per incuriam and is liable to be
ignored in view of the law laid down by
the Apex Court in State of U.P. and
another10 Vs. Synthetics and Chemicals
Limited and another wherein relying on
Lancaster Motor Company (London) Ltd.
Vs. Bremith Ltd11. It has been clearly
expounded
that a decision rendered
"without reference to the crucial words of
the rule and without any citation of the
authority" is of no binding efficacy. The
relevant provisions particularly clauses
(7), (9) and (10) of Statute 11.12B have
not been taken into reckoning which in no
delphic terms, point to the fact that
personal promotion under Section 31-A of
the Act is not like automaton to a teacher
becoming eligible for personal promotion
and lay down that personal promotion
shall have effect from the date of taking
over charge. Assessment of work is
required to be made by the Selection

8 Kanailal Sur V. Paramnidhi Sadhu Khan,
AIR 1957 Supreme Court 907, p. 910.
9 1995 (II) A.W.C. 832
10 (1991) 4 SCC 139
11 (1941) 1 KB 675
1All] Salim V. State of U.P.
243
Committee and thereafter positive
order granting personal promotion is
required to be passed by the Executive
Council. In view of the plain language
employed in Clause (7) of Statute 11.12B,
the view that personal promotion shall
take effect not from the date of taking
over charge of the post but from the date
on which the teacher concerned became
eligible for consideration for grant of
personal promotion, does not stand to
reason. The contention of Sri V.B. Singh
that personal promotion under Section -
31A shall take effect from the date of the
teacher becoming eligible is against all
known
principles
of
service
jurisprudence.

11. Before parting, we may,
however, observe that it would be open to
the petitioners to claim protection of the
salaries and emoluments paid to them as
Professors
on
the
basis
of
illegal
promotions granted to them. In case
petitioners move any such application
claiming protection of the salaries and
emoluments already paid to them for the
post of Professors, it would be open to the
respondents to take appropriate decision
in that regard in accordance with law
without
being
prejudiced
by
any
observation made in this judgement.

12. In the result, the writ petition
fails and is dismissed in limine subject to
the observations aforestated.

Petition Dismissed.

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By the Court

1. Appellant Saleem has been
convicted and sentenced to imprisonment
for life under Section 302 of the Indian
Penal Code for having caused the death of