Dr. Vishnu Dutt Bindal vs Laxmibai National College of Physical Education

Claim of the employee for promotion to the post of Professor.--Disposal of petitions MP.No.1476/2017 and WP.16199/2017. Petitions are against the order dated 28.07.2017 passed by the Central Administrative Tribunal, Jabalpur: Circuit Bench at Gwalior in Original Application No.446/2013. Section 26 in The University Grants Commission Act, 1956

Writ Petitions:
1. MP.1476.2017  With
2. WP.16199.2017

MP.1476.2017 
Petitioner : Dr. Vishnu Dutt Bindal 
Respondant : Lakshmibai National Institute of Physical Education & Ors
With
WP.16199.2017
Petitioner : Lakshmibai National Institute of Physical Education & Other
Respondant : Dr. Vishnu Dutt Bindal and others

Advocates Appeared
Shri Satish Chandra Sharma,(Petitioner No 1)     
Shri Prashant Sharma,Satish Chandra Sharma (Respondent No.1)
Shri Vinod Kumar Sharma,(Respondent No.2).

JUDGES 
Hon'ble Justice Sanjay Yadav             
Hon'ble Ashok Kumar Joshi

Career Advancement Scheme,which was negatived on the ground that he does not possess requisite qualification of having Ph.D. in the relevant discipline, has been allowed to the extent that the employer shall refer the matter to an expert for his opinion whether having Ph.D. with the topic "A Study of Relationship Between Family Background and Postural Defects in Primary School Boys" can be construed to be a relevant discipline in Physiotherapy.

The petitioner (employee) was selected and appointed as lecturer in Kinesiology and Physiotherapy in Laxmibai National College of Physical Education by order dated 20/11/1987. That by order dated 05/06/1992, the petitioner was confirmed on the said post w.e.f. 23/01/1990. That while in service the petitioner did his Ph.D. from Jiwaji University in Sociology with the topic "A Study of Relationship Between Family Background and Postural Defects in Primary School Boys".

That University Grants Commission notified in the year 1998: Revision of Pay Scales, THE HIGH COURT OF MADHYA PRADESH MP.1476.2017 Dr. Vishnu Dutt Bindal Vs.Lakshmibai National Institute of Physical Education & Ors & WP.16199.2017 Lakshmibai National Institute of Physical Education & Other Vs. Dr. Vishnu Dutt Bindal and others Minimum Qualifications for Appointment of Teachers in Universities and Colleges and Other Measures for the Maintenance of Standards, 1998. Clause 6.0 whereof provides for incentives for Ph.D./M.Phil. Clause 6.4.0 envisaged that a teacher will be eligible for two advance increments as and when she/he acquires a Ph.D. degree in her/his service career.

Petitioner after acquiring Ph.D. degree sought benefit under Clause 6.4.0 for the increments whereon his matter was referred to the subject experts to decide the issue of relevancy and of interdisciplinary nature of Ph.D. thesis in respect of the petitioner. The reason was that, there was no relevancy clause in the Regulations, 1998.

That on the basis of the opinion expressed by the experts; viz., Dr. A.M. Moorthy, Dean, Faculty of Education and Professor and Head, Department of Physical Education and Health Sciences, Alagappa University, Karaikudi, Tamilnadu and Dr. D.K. Dureha, Professor & Head, Department of Physical Education Faculty of Arts, Banaras Hindu THE HIGH COURT OF MADHYA PRADESH MP.1476.2017 Dr. Vishnu Dutt Bindal Vs.Lakshmibai National Institute of Physical Education & Ors & WP.16199.2017 Lakshmibai National Institute of Physical Education & Other Vs. Dr. Vishnu Dutt Bindal and others University that the Ph.D. work of the petitioner is directly relevant to physical education, the petitioner was given the benefit of two advance increments.

That University Grants Commission in exercise of its powers conferred under clause (e) and (g) of sub-section (1) of Section 26 of University Grants Commission Act, 1956, and in pursuance of the MHRD O.M. No.F.23-7/2008-IFD dated 23rd October, 2008 read with Ministry of Finance (Department of Expenditure) O.M. No.F1- 1/2008-IC dated 30th August, 2008, and in terms of the MHRD Notification No.1-32/2006-U II/U I(1) issued on 31st December, 2008 and in supersession of the University Grants Commission (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) Regulations, 2000, issued by University Grants Commission vide Regulation No. F. 3- 1/2000 (PS) dated 4th April, 2000 together with all amendments made therein from time to time, framed the University Grants Commission THE HIGH COURT OF MADHYA PRADESH MP.1476.2017 Dr. Vishnu Dutt Bindal Vs. Lakshmibai National Institute of Physical Education & Ors & WP.16199.2017 Lakshmibai National Institute of Physical Education & Other Vs. Dr. Vishnu Dutt Bindal and others (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (referred as Regulations, 2010).

That Clause 6.4.0 of these Regulations, 2010 provides for the stages of promotion under the career advancement scheme of incumbent and newly appointed Assistant Professors/Associate Professors/Professors.

Clause 6.4.8 of Regulations, 2010 which is relevant for the present envisages:

"Associate Professor completing three years of service in stage 4 and possessing a Ph.D. Degree in the relevant discipline shall be eligible to be appointed and designated as Professor and be placed in the next higher grade (stage 5), subject to (a) satisfying the required credit points as per API based PBAS methodology provided in Table I-III of Appendix IV stipulated in these Regulations, and (b) an assessment by a duly constituted selection committee as suggested for the direct recruitment of Professor. Provided that no teacher, other than those with a Ph.D., shall be THE HIGH COURT OF MADHYA PRADESH MP.1476.2017 Dr. Vishnu Dutt Bindal Vs.Lakshmibai National Institute of Physical Education & Ors & WP.16199.2017 Lakshmibai National Institute of Physical Education & Other Vs.Dr. Vishnu Dutt Bindal and others promoted or appointed as Professor."

The claim of the petitioner for promotion as Professor under career advancement scheme was turned down by order dated 08/09/2011 for the following reasons:

"1. initially appointed as Lecturer in Kinesiology and Physiotherapist while you were not in possession of minimum essential qualification in Kinesiology as well as Physiotherapy.

2. initial appointment on the post of Kinesiology and Physiotherapist was made in relaxation of essential qualification prescribed by the institute at that point of time. The B.Sc. was prescribed as essential qualification while you were B.A.

3. have no education qualification in Kinesiology nor Degree in Physiotherapy till date.

4. The Qualifications acquired while being in service viz. Master Degree and Ph.D. have not been in the relevant field but are in the Sociology. However, the benefits of promotion to the post of Reader and advance increments have been extended to you on the ground of its inter-disciplinary nature and on the THE HIGH COURT OF MADHYA PRADESH MP.1476.2017 Dr. Vishnu Dutt Bindal Vs.Lakshmibai National Institute of Physical Education & Ors & WP.16199.2017 Lakshmibai National Institute of Physical Education & Other Vs. Dr. Vishnu Dutt Bindal and others basis of clarifications from the University Grants Commission in this regard.

5. have been designated as Associate Professor with effect from 01.01.2006 in terms of UGC Regulations, 2010.

6. Designating Associate Professor as Professor under CAS is subject to acquiring Ph.D. in the relevant discipline and the concept for such a designation/elevation is that higher qualification will ultimately benefit the students being taught in the Department, while have not acquired such higher qualifications in the relevant discipline and is also not having basic qualification in the subject (Kinesiology) nor acquired higher qualifications (Master's and Ph.D. Degrees) in the said field."

The qualification, experience and other eligibility requirements for appointment of Physiotherapy Teachers are is as provided under Clause 4.4.4 of Regulations, 2010:

"1. ASSISTANT PROFESSOR i Bachelor Degree in Physiotherapy (B.P/T./B.Th./P./B.P.Th), Masters in Physiotherapy (M./P.Th/M.Th.P./M.Sc.P.T./M.PT.) with at least 55% marks (or an equivalent THE HIGH COURT OF MADHYA PRADESH MP.1476.2017 Dr. Vishnu Dutt Bindal Vs.Lakshmibai National Institute of Physical Education & Ors & WP.16199.2017 Lakshmibai National Institute of Physical Education & Other Vs.
Dr. Vishnu Dutt Bindal and others grade in a point scale wherever grading system is followed) from recognized University.
2.ASSOCIATE PROFESSOR
i.Master in Physiotherapy         (M.P.T./M.P.Th./M.Th.P/M.Sc.P.T.)with eight years total experience as Assistant Professor.
ii. Desirable: Higher Qualification like Ph.D. in any discipline in Physiotherapy recognized by U.G.C./independent published work of higher standard.

3. PROFESSOR:
i. Masters in Physiotherapy (M.P.T./M.P.Th./M.Th.P/M.Sc. P.T.) with eleven years total experience including five years experience as Associate Professor (Physiotherapy) ii. Desirable: Higher Qualification like Ph.D. in any discipline in Physiotherapy recognized by U.G.C./independent published work of higher standard.4. PRINCIPAL/DIRECTOR/DEAN:
i. Masters in Physiotherapy (M.P.T./M.Th.P./M.Pth./M.Sc. P.T.) with fifteen years total experience, including five years experience as THE HIGH COURT OF MADHYA PRADESH MP.1476.2017 Dr. Vishnu Dutt Bindal Vs.Lakshmibai National Institute of Physical Education & Ors & WP.16199.2017 Lakshmibai National Institute of Physical Education & Other Vs.Dr. Vishnu Dutt Bindal and others Professor (Physiotherapy).
ii. Senior-most Professor shall be the Principal/Director/Dean."

The petitioner is Bachelor in Arts with diploma in Physiotherapy. There is no denial of fact that the petitioner was given the appointment in relaxation of essential qualification. It is also not disputed that the petitioner did his Ph.D. in Sociology.

That, true it is that while considering the claim of the petitioner for grant of two advance increments in lieu of Ph.D. degree on the basis of an opinion by experts the petitioner was extended the benefit under Clause 6.4.0 of 1998 Regulations which stipulated  "6.4.0 A teacher will be eligible for two advance increments as and when she/he acquires a Ph.D. degree in her/his service career."

However, Clause 6.4.8 of Regulations, 2010 which provides for promotion to a higher grade, the expression "relevant discipline" acquires relevancy and in our considered opinion has to be construed in terms of the norms laid down for THE HIGH COURT OF MADHYA PRADESH MP.1476.2017 Dr. Vishnu Dutt Bindal Vs.
Lakshmibai National Institute of Physical Education & Ors & WP.16199.2017 Lakshmibai National Institute of Physical Education & Other Vs. Dr. Vishnu Dutt Bindal and others promotions. That Clause 4.4.4.3 of the Regulations, 2010 lays down the following essential qualification for the post of Professor:-

"3. PROFESSOR:

i. Masters in Physiotherapy (M.P.T./M.P.Th./M.Th.P/M.Sc. P.T.) with eleven years total experience including five years experience as Associate Professor (Physiotherapy)

ii. Desirable: Higher Qualification like Ph.D. in any discipline in Physiotherapy recognized by U.G.C./independent published work of higher standard.Thus, a Ph.D. in any discipline in Physiotherapy recognized by the UGC is the "relevant discipline" under Clause 6.4.8 of Regulations 2010, which will entitle a person for consideration of benefits of higher post under Career Advancement Scheme under Clause 6.4.0. The petitioner evidently does not have to his credit Master in Physiotherapy and Ph.D. is not in any discipline in Physiotherapy but has a Ph.D. in the discipline of Sociology as would create any right in the petitioner to claim benefit under THE HIGH COURT OF MADHYA PRADESH MP.1476.2017 Dr. Vishnu Dutt Bindal Vs. Lakshmibai National Institute of Physical Education & Ors & WP.16199.2017 Lakshmibai National Institute of Physical Education & Other Vs. Dr. Vishnu Dutt Bindal and others Regulation 6.4.8 of the Regulations, 2010.

The Tribunal, in our considered, grossly erred in considering the opinion of 2005 to be relevant in directing the employer to refer the matter to the experts to determine the relevancy.
Consequently, impugned order dated 28.07.2017 passed by the Tribunal in O.A.No.446/2013 is set aside. The order rejecting the claim of the petitioner in MP.1476/2017 for promotion as Professor is upheld.

In the result, MP.1476/2017 filed by the employee is dismissed whereas W.P.16199/2017 filed by the employer is allowed to the extent above. No costs.