Dr. Aftab Ahmad Khan, Dr. Akhtar Hussian Mir
More recently Central Administrative Tribunal (CAT) passed a judgment wherein Govt. order No. 684-HE of 2017 Dt. 12-12-2017 regarding Promotion through selection of College Principals was quashed and set aside. The verdict in unequivocal terms weighs up non recognition of Civil Services Rules in the Promotion through selection process. The judgment enjoins upon the Department of Higher Education to revise the exercise of promotion procedures as per conventional strategy as against the in practice UGC Regulations within a stipulated time frame. It elaborates that all eligible candidates including the applicants be considered in accordance with the mandate contained in the un-amended Rules of 2008. Verdict makes it mandatory for Higher Education Department to consider the claim of petitioners also for regularisation of their services from the date they were officiating on the said posts and exercise for promotion must ensure a mandate contained in the Sub Rule (2) of Rule 2 of J&K Civil Services (Reference of vacancies and Holding of Meetings of Departmental Promotion Committee) Rule 2005. It further supplements its verdict with a reference of endorsements in the light of judgment passed by Hon’ble Apex Court in S.P Gupta Vs State of J&K AIR 2000 SC 2386 and Hon’ble High Court in LPA (SW) No. 159/2016 (Supra) and with the illustration at Paragraph No. 7 of Government Order 743 – GAD of 2007 dated 28.6.2007 for connivance and early action.
The judgment came as an utter surprise to the department as well as to the incumbent principals who were promoted through selection to the post by virtue of aforesaid Government order since 2017 that too with retrospective effect from 01-01- 2016. The procedure for such promotion through selection since 2004 notified vide SRO 115 of 2004 dated 16-04-2004 was adopted as a result of National Policy for Education (NPE – 1986) and recommendations made vide University Grants Commission under Section 12 or Section 13, or sub-section (2) of Section 25 or of any regulations made under clause (e) or clause(f) of clause (g) of Sub-Section (I) of Section 26 indicating that in case of any contravention to Regulations UGC reserves the right to withhold or refuse funding. Therefore, nationally designed regulations superseded conventional procedures for promotions pushed through Internal Departmental Promotion Committee with a device of seniority syndrome and later on fully abolished under J&K Education (Gazetted) College Service Rules 2008 notified vide SRO – 423 of 2008 dated:- 23-12-2008.
The National Policy Document thus incited a change in the method of recruitment to the post. It placed in practice PSC/DPC selection with Minimum qualification at the time of initial appointment among class 11, Category A (i.e Lecturer Selection Grader/Reader Grade teachers). The modus operandi to recruitment was again tuned and lined up with nationally recognised standards with further amendment to scheduled 1 &11 of J&K Education (Gazetted) College Service Recruitment Rules 2008 and notified vide SRO -124 of 2014 dated 21-04-2014. The amended/ revised Rules upheld mode of recruitment to the post of College Principal thereof as a selection post filed through PSC/DPC from Class 11 Category (A) officers (i.e Associate Professor).
Needless to say that selection process from 2014 to 2015 to the post of principal was frozen in view of delay caused by litigations seeking (Writ Petitions and contempt petitions) judicial interpretation to the selection practices adopted by the department from aggrieved faculty working in different Degree Colleges. Hon’ble Division Bench of Hon’ble Court disposed off all such litigations with a mandate of law and issued a direction that;
” Public Service Commission shall proceed with the selection of Principals by promotion to such of those vacancies which arose prior to 21-04-2014 after getting vacancies position from respondent No. 1 Higher education Department as per the procedure in vogue prior to 21-04-2014 and the vacancies which arose after 21-04-2014 are to be filled up by following the procedure contemplated under SRO 124 dated 21-04-2014.
Accordingly PSC furnished a list of selected candidates which was referred to the Department of Law, Justice and Parliamentary Affairs with a request to advise in the light of above stated Hon’ble Courts direction regarding various writ petitions/ contempt proceedings. The Department of Law, Justice and Parliamentary Affairs with due consideration furnished the advice that” Higher Education Department “can go ahead with selection process. However, the said process has to be carried as per the mandate of the judgment dated 16-12-2016 passed by the Division Bench of the Hon’ble Court in LPA (SW) No. 159/2016 titled Kartar Chand & other V/s State and others.
Now, after the issuance of appointment orders the non selectee aggrieved faculty contested the appointment orders of Principals on the premise of Civil Service Rules operating until 2004. Infact insight was to seek refuge under the un-amended Rules of 2008 for being appointed by way of promotion to the post of Principals and regularization of their services on the said posts. The insight in the first instance amounts to an endeavour to reinvent abolished conventional method for benefit of promotion. It all displays a determinate aspiration for arithmetic Court intervention under conventional procedures instead of seeking court intervention for relief from an institution/tribunal having competence/ jurisdiction over UGC regulations. CAT while acting upon its domain (Civil Service Rules) provided appropriate relief to all the litigants as per its jurisdiction. The relief is based on abolished conventional procedures and not as per service matters upheld vide UGC Regulations which Higher Education Department has inherited from UGC since 2008.
The judgment unfolds an enigma in a sense that department is required to reinvent traditional procedures in a time bound manner. The activity utterly invents a reverse gear option with determinate direction of rediscovering conventional practices instead of a considered motivation forging an upward aspiration towards modern organizational techniques unfolding supremacy of merit, Transparency, Accountability, Work Culture, Uniformity, Equivalence , Standard Practices, Procedures, Service Code with 100% funding for salary component and infrastructure development from University Grants Commission. Time bound Action as required by CAT poses puzzle solving situation to the Department of Higher education in view of contraventions and apprehension for de-recognition of JK Higher Education by UGC.
Non observance of UGC Regulations in the Service Matters seems to be an uphill task and bound to inflame some reflection and daunting scenes coupled with disentanglement with National Document on Education. It also is bound to stimulate potent remonstrance from all societal levels. It can also motivate a caution for freezing of assured future funding which department of higher Education is receiving under title Head UGC “Financial Assistance”.
Now with the coming of CAT directions Department is entangled to a puzzle solving situation. On the one side fresh petitions from appointed candidates are bound to crop up with new perplexity and vigour and on the other side ability and conduct of department would be put to the test because non action in the matter shall also prompt contempt proceedings in an unprecedented manner from litigants apart from the criticism for non action from electronic and printed media. Under such circumstance one can visualize that a dilemma is mounting in the coming days and puzzle of this nature can is expected to be resolved with the instrument of Superior Court Intervention or Returning the Judgment of this kind to CAT with a request for Review as per UGC Regulations.
(The authors are Ex. Principal GDC-Kangan Retired Prof. Political Science)
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