VINDU KISHORE SHARMAversusCHANCELLOR, CHAUDHARY CHARAN SINGH

                    [2015] 10 S.C.R 183


                 VINDU KISHORE SHARMA                              A
                               v.
      CHANCELLOR, CHAUDHARY CHARAN SINGH
           UNIVERSITY, MEERUT & ORS.
          (Civil Appeal Nos.13724~ 13725 of 2015)                  B

                    NOVEMBER 26, 2015
 [JAGDISH SINGH KHEHAR AND R. BANUMATHI, JJ.]
      Service Law- Promotion - Claim of- Post of professor         c
- Promotion of appellant-reader under the Personal
Promotion Scheme to the post of Professor - However,
revocation of order of promotion since the appellant did not
exercise his option for continuing to be governed under the
erstwhile instructions/Scheme - Writ petition challenging          D
revocation order of promotion - High Court dismissed the
writ petition as also the review petition - On appeal, held: For
continuing in the erstwhile schem·e, it was imperative for a
teacher governed by the conditions of s. 31 A, to optin writing
to remain under the said scheme - All those who did not            E
exercise their express option in writing, would automatically
be deemed to have accepted to be governed by the
amended scheme - Appellant did not exercise his option,
even afterthe issuance of the amended scheme to continue
in the original scheme - Claim of the appellant for personal       F
promotion could not have been considered under the original
scheme - Thus, there is no infirmity in the revocation of
promotion order - Respondent-University not to make any
recovery of emoluments released to him, consequent upon            G
his promotion to the post of Professor - Appellant having
retired from service on attaining the age of superannuation,
the respondent to release the retiral benefits to him - In case
the appellant is entitled to promotion (or for the benefit of a
higher grade) under the amended scheme, appellant to be            H
                               183
184         SUPREME COURT REPORTS               [2015] 10 S.C.R.


A allowed the same- Uttar Pradesh State Universities Act, 1973
      - s. 31A.
          CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
      13724-13735 of 2015
B
           From the Judgment and Order dated 11.07.2014 of the
      High Court of Judicature atAllahabad, in Review Petition No.
      9632 of 2014 in CMWP No. 32271 of 2002 and dated
      12.12.2013 in CMWP No. 32271 of2002.
c                                WITH

      CONMT. PET. (C) NOS. 479-480/2015

              IN

D     SLP (C) NOS. 33090-33091/2014

           Yatish Mohan, Kedar Nath for the Appellant.

      Pramod Swarup, Ameet Singh, Pareena Swarup,
E Sushma Verma, Ankit Malik, Praveen Swarup for the
  Respondents.

           The Judgment of the Court was delivered by

            J. S. KHEHAR, J. C. A. Nos.13724-13725 of 2015
F     (Arising out of SLP(C)Nos.33090-33091 of 2014)

           1. Leave granted.

       2. The appellant-Vindu Kishore Sharma was appointed
G as a Reader in the Department of Physics of the Chaudhary
  Charan Singh University, Meerut (hereinafter referred to as 'the
  University') on 30.03.1982. The appellant claimed onward
  promotion to the post of Professor under the "Personal
  Promotion Scheme". The promotion under the "Personal
H Promotion Scheme" was introduced by an amendment of the
 VINDU KISHORE SHARMA v. CHANCELLOR, C. C. S.                       185
      UNIVERSITY, MEERUT [J. S. KHEHAR, J.]

Uttar Pradesh State Universities Act, 1973 (hereinafter referred .A
to as 'the University Act') by inserting Section 31A therein.
Section 31A being relevant for the present controversy, is
extracted hereunder:
    . "31-A. Personal promotion to Teachers of University:
                                                                   B
     (1) Notwithstanding anything to the contrary contained in
     any other provision of this Act, a Lecturer in the University
     appointed under Section 31, or a Reader in the University
     appointed under Section 31 or promoted under this
     section, who has put in such length of service and C
     possesses such qualifications, as may be prescribed,
     may be given personal promotion, respectiyely to the
     post of Reader or Professor.
     (2) Sucti personal promotion shall be given on the
     recommendation of the Selection Committee, D
     constituted under clause (a) of sub-section (4) of Section
     31, in such manner and subject to such conditions as·
     may be prescri~ed.
     (3) Nothing contained in this section shall affect the posts   E
     of the teachers of the University to be filled by direct
     appointment in accordance with the provisions of Section
     31."
A perusal of Section 31A reveals, that a scheme of personal
promotion is contemplated for Lecturers, who can be promoted        F
as Readers; and for Readers, who can be promoted as
Professors. Section 31A also contemplates that eligibility for
promotion under the "Personal Promotion Scheme" would be
determined on the basis of "... such qualifications, as may be      G
prescribed ... ".

     3. The first prescription of qualifications for promotion
under the "Personal Promotion Scheme", contemplated under
Section 31A of the University Act, came to be issued on
25.02.1984. Under the aforesaid instructions, a Reader who          H
186         SUPREME COURT REPORTS                  [2015] 10 S.C.R.


A     had completed 10 years regular service against the post of
      Reader (out of which 5 years should have been rendered in
      the same University) would be eligible for personal promotion
      to the post of Professor. The 1984 instructions also postulated,
      that such of the teaching staff as are eligible, and would apply
B     for personal promotion in the prescribed proforma, would be
      allowed personal promotion subject to their work being
      adjudged as satisfactory, by a Selection Committee.

        4. Having been inducted into the service of the University
C on 30.03.1982, the appellant became eligible for personal
  promotion, under the instructions dated 25.02.1994, on
  30.03.1992. Consequent upon the appellant having raised a
  Claim for promotion, the Chancellor of the University allowed
  him personal promotion against the post of Professor, with
D effect from 11.03.1992. This promotion was granted to the
  appellant, only after he had been cleared for the same by the
  Executive Council of the University.

            5. Even though the appellant was promoted under the
E     "Personal Promotion Scheme" to the post of Professor with
      effect from 11.03.1992, the order of promotion came to be
      revoked on 05.06.2008.Aperusal of the aforesaid order dated
      05. 06.2008 reveals, that the order of personal promotion was
      recalled because the appellant had not opted to be governed
 F    by the policy of promotion contemplated under the instructions.
      dated 25.02.1984. It was the express case of the University,
      set up in the order dated 05.06.2008, that to continue to be
      governed by the instructions dated 25. 02. 1984, it was
      imperative for the appellant to have opted out of the schemes,
G     that came to be issued through the instructions dated
      10.09.1987 and 07.01.1989. Since the appellant had not
      exercised his option for continuing to be governed by the
      scheme of 25. 02.1984, his claim could not be considered
H     under the said "Personal Promotion Scheme" regulated by
      the instructions dated 25.02.1984.
 VINDU Kl SHORE SHARMA v. CHANCELLOR, C. C. S.                 187
      UNIVERSITY, MEERUT [J. S. KHEHAR, J.]

      6. The order dated 05.06.2008, passed by the University, A
came to be assailed by the appellant by filing Civil
Miscellaneous Writ Petition No.32271 of 2002, in the High
Court of Judicature at Allahabad, wherein, the prayer of the
appellant was for the issuance of a writ, order or direction in
the nature of writ of certiorari for quashing the order dated B
05.06.2008 passed by the University. The above writ petition
was disposed of by the High Court, through an order dated
12.12.2013, declining the prayer made by the appellant (for
quashing the order dated 05.06.2008). The aforesaid order
dated 12.12.2013 (as also, the order dated 11.07.2014, C
rejecting the review petition) is assailed by the appellant,
through the instant appeals.
      7. The solitary contention advanced at the hands of the
learned counsel for the appellant, during the course of hearing D
was, that the appellant having applied for promotion under the
"Personal Promotion Scheme" should be deemed to have
opted for being governed under the scheme of 25.02.1984.
At this juncture, it would be relevant to indicate, that the
appellant had applied for promotion under the Personal . E
Promotion Scheme on completing 10 years of service (on
30.03.1992) as Reader, in 1998.
      8. The solitary question that arises for our consideration
is, whether the appellant could claim promotion under the F
"Personal Promotion Scheme" of 25.02.1984. Whilst it is the
contention of the appellant, that the appellant could be
considered under the "Personal Promotion Scheme" of
25.02.1984; it is the submission of the learned counsel for the
respondent, that the scheme of 25.02.1984, having been G
superseded by the schemes of 10.09.1987 and 07.01.1989,
clearly debarred the claim of the appellant under the earlier
scheme of 25.02.1984.
    9. We have perused instructions dated 10. 09 .1987. The
same have been placed on the record of this case as Annexure   H
188       SUPREME COURT REPORTS                  [2015) 10 S.C.R.


A P-2. A perusal of the instructions dated 10.09.1987 reveals,
  that the primary purpose thereof was, to implement the revision
  of pay scales of teachers in University and degree colleges.
  While implementing the aforesaid revised pay scales, the
  authorities introduced an amendment in the "Personal
B Promotion Scheme", as well. In doing so, the instructions dated
  10.09.1987 clearly contemplated as under:
         "1. This scheme applies to teachers in all State
         Universities and Colleges administered by the U.P. State
c.       Universities Act, 1973, admitted to the privileges of the
         Universities unless they specifically exercise an option
         in writing to remain out of this Scheme as provided in
         para 19 hereafter.
           xxx                   xxx                    xxx
D
         19. The existing teachers in Universities and Colleges
         will have an option to continue to be governed by the
         provisions of the aforesaid Personal Promotion/
         Selection Grade schemes provided that they exercise
E        that option in writing within 90 days of the date of issue
         of th is Government order. They will also be entitled to the
         designation envisaged for teachers in those schemes,
         but the scale of pay will be as follows :
         (i)   Lecturer                  Rs. 2,200-4,000
 F       (ii)  Reader/Lecturer           Rs. 3,000-5,000
               (Selection Grade)
         (iii) Professor/Principal       Rs. 4,500-5,700"
               (Selection Grade)
G The aforestated extracts from the scheme of 10.09.1987,
 · leaves no room for any doubt, that such of the teachers who
   desired to continue to be governed under the erstwhile scheme
   of 25.02.1984, were required to exercise an express option
   to remain out of the new scheme of 10.09.1987, in writing within
H 90 days, failing which .it would be deemed as if, they had opted
  VINDU KISHORE SHARMA v. CHANCELLOR, C. C. S.                   189
       UNIVERSITY, MEERUT [J. S. KHEHAR, J.]

to be governed by the amended scheme of 10.09.1987. The A
express stance adopted by the appellant was, that there was
no requirement for the appellant to exercise an option, to
remain under the erstwhile scheme of 25.02.1984. It is
therefore, that he did not tender such an option. The extracted
paragraphs of the second scheme dated 10.09.1987 clearly B
reveals, that the view of the appellant was misconceived.
Factually, the scheme of 10.09.1987 expressly required all
teachers who desired to continue under the prevailing scheme
of 25.02.1984, to make an option in writing to that effect. Since
the appellant did not exercise such an option, we have no doubt C
whatsoever, that the appellant after the introduction of the
scheme of 1ci.09.1987, came to be governed by the latter
scheme of 10.09.1987.

      10. Even afterthe scheme of 10.09.1987, the competent D
  authority issued a further "Personal Promotion Scheme", on
  07.01.1989. On this occasion also, similar stipulations, as
  were made in the scheme of 10.09.1987, were again made in
. the revised scheme, which are apparent from the following
  paragraphs of the revised scheme dated 07.01.1989 :            E

      "1.     This scheme applies to teachers in all State
      Universities/Colleges administered by the U.P. State
      Universities Act, 1973 admitted to the privileges of the
      Universities unless they have already specifically         F
      exercised an option in writing to remain out of this
      Scheme as referred to in para 19 hereinafter.
        xxx                         xxx                  xxx
      19. These teachers in Universities and colleges will G
      continue; to be governetj by the provisions of the
      aforesaid personal promotion/selection grade scheme
      who have already exercised that option in writing within
      90 days of the date of issue of Government order dated
      1OSept 1987. Such teachers will also be entitled to the    H
190       SUPREME COURT REPORTS                  [2015] 10S.C.R.


A        designation envisaged for various categories of teachers
         in these schemes but the scales of pay will be as follows:-
         (i) Lecturer                           Rs. 2,200-4,000
         (ii)· Reader/Lecturer                  Rs. 3,000-5,000
              (Setection Grade)
B
         (iii) Professor/Principal              Rs. 4,500-5,700"
               (Selection Grade)
    For exactly the same reasons as have been recorded by us
    with reference to the "Personal Promotion Scheme" of
c   10.09.1987,we are satisfied, that for continuing in the erstwhile
    scheme of 25.02.1984, it was imperative for a teacher
    governed by the conditions of Section 31A of the University
    Act, to opt in-writing to remain under the scheme of
    25.02.1984. All those who did not exercise their express option
D in writing, would automatically be deemed to have accepted
    to be governed by the amended scheme of 07.01.1989. Yet
  . again, it is apparent, that the appellant did not exercise his
    option, even aft~r the issuance of the amended scheme of
    07.01.1989 (to continue in the original schemeof25.02.1984). ·
E
          11. In the above view of the matter, there can be no doubt,
    that the claim of the appellant for personal promotion could
    not have been considered under the original scheme of
    25.02.1984. Accordingly, we find no infirmity in the impugned
F order dated 05.06.2008 passed by the University, whereby,
    the personal promotion granted to the ~ppellant against the
    post of Professor with effect from 11.03.1992 has been
    revoked. The order of promotion was revoked because the
    claim of the appellant had been considered under the
G "Personal Promotion Schelr!e" of 25.02.1984. The appellant's
    claim was wrongly considered under the "Personal Promotion
    Scheme" because he had not exercised an option in writing to
    be governed by the same, after the schemes of 10.09.1987
    and 07.01.1989 were issued.
H
  VINDU KISHORE SHARMA v. CHANCELLOR, C. C. S.                         191
       UNIVERSITY, MEERUT [J. S. KHEHAR, J.]

      12. It is, however, apparent, that the appellant enjoyed A
the benefit of personal promotion, till the order of promotion
was revoked on 05.06.2008. Such being the situation, we are·
of the view, that it would be extremely unjust to require the
appellant to refund the emoluments paid to him beyond his
entitlement (with effect from 11.03.1992 till 05.06.2008). We B
therefore direct the respondent-University not to make any
recovery of the emoluments released to him, consequent upon
his promotion to the post of Professor with effect from
11.03.1992.
                                                                       c
       13. We have been informed, that the appellant has since
been retired from service on attaining the age of
superannuation. We are satisfied, that the ends of justice would
require the respondent-University to calculate and release the
retiral benefits to the appellant. However, before such retiral D
benefits are released to the appellant, we direct the
respondent-University to consider the claim of the appellant
for personal promotion (or for his placement in a higher grade)
under the amended scheme of 07.01.1989. And in case the
appellant is entitled to promotion (or for the benefit of a higher E
grade) under the amended scheme, the appellant shall be
allowed the same by the respondent-University in consonance
with law. The instant exercise shall be carried out by the
respondent-University within three months from the date of F
receipt of a certified copy of this order.

       14. The appeals are disposed of in the above terms.

    CONMT.PET.(C)Nos.479-480/2015 IN SLP(C) Nos.
33090-3309112014                                                       G

      15. In view of disposal of main appeals, nothing further
survives in these petitions, and the same are disposed of as
such.
                                                                       H
Nidhi Jain                   Appeals & Contempt Petjton disposed of.