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PETITIONER: DR. Y.S. PARMAR UNIVERSITY OF HORTICULTUREAND FORESTRY AND A

       Vs.

RESPONDENT: RAJ KUMAR THAKUR

DATE OF JUDGMENT17/08/1990

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) SHARMA, L.M. (J)

CITATION:  1991 AIR  952            1990 SCR  (3) 772  1990 SCC  Supl.  364     JT 1990 (3)   549  1990 SCALE  (2)336

ACT:     Y.S.   Parmar University--Ph. D. student  appointed  As- sistant Professor--Whether an in-service  candidate--Whether entitled to extension of semesters.

HEADNOTE:     The grant of permission to an in-service teacher of  the appellant  University  to undertake  doctoral  programme  is subject to the statutory restrictions; (a), that the  course of study is not available in other institutions and  univer- sities,  (b)  that the study leave would be  admissible  for pursuing  approved courses outside the University only,  (c) that the study leave would be granted after the teacher  has completed five years of continuous service in the  Universi- ty,  and  (d) that the permission to do the  same  would  be given according to seniority. An Assistant Professor becomes entitled to the senior scale after completion of eight years of service. However, the senior scale becomes applicable  to a  person getting Ph.D. degree after five years  instead  of eight years.     The respondent was a Ph.D. student under the  Department of  Agriculture of the appellant-University for a course  of study available in several other institutions, which he  was required to complete in six semesters, with entitlement  for extension by two semesters each on the recommendation of the Adviser  and  the Dean respectively.  Subsequently,  he  was appointed Assistant Professor in the said University. He had by  then completed seven semesters. He was permitted by  the Dean to register for the eighth semester without the  knowl- edge  that  he  had become an employee  of  the  University. However,  thereafter he was refused permission by the  Vice- Chancellor to register for the ninth semester on the  ground that having become an employee of the University he was  not entitled to that benefit.     In  the writ petition challenging the said  refusal  the High Court by majority found that the respondent was not  an in-service  candidate  as  he had  already  completed  eight semesters  and directed the Vice Chancellor to register  him for the ninth and the tenth semesters. 773 Allowing the appeal by special leave, the Court,

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   HELD: The respondent could not escape from the statutory restrictions  which became applicable to him as soon  as  he became an in-service candidate for the remaining part of the Ph.D.  course  on his taking up of the  appointment  in  the University-  The  benefit claimed if granted  to  him  alone would  result  in his getting  consequential  benefits  much before  his  several seniors and would  seriously  prejudice their  claim and amount to an act of discrimination. Such  a course is impermissible. [776D-E]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3951  of 1990.     From  the  Judgment  and Order dated  10.4.1990  of  the Himachal Pradesh High Court in C.W.P. No. 12 of 1990. V.A. Bobde, A.K.Sanghi and S. Mudaliar for the Appellants.     Dr.  Y.S.  Chitale, Mrs. Sadhna Ramachandran  and  Jagan Mohan Rao for the Respondent. The Judgment of the Court was delivered by VERMA, J- Special leave granted.     Respondent,  Raj  Kumar  Thakur, was a  student  in  the Postgraduate Doctoral Programme as a Ph.D. scholar with  his subject for doctoral study "Breeding of Honey Bees-A-Mellif- era  for Honey production through  Artificial  Insemination" which  is a subject under the Department of  Agriculture  of Dr. Y.S. Parmar University of Horticulture & Forestry and is a course of study available in several other institutions in the  country. The respondent was registered for this  course in 1985 and was required to complete the same in six  semes- ters with entitlement for extension by two more semesters by the  Dean  on the recommendation of the Adviser  and  for  a further extension of two more semesters by the Vice-Chancel- lor  of the Dr. Y.S. Parmar University of  Horticulture  and Forestry  on the recommendation of the Dean. The  respondent completed  seven semesters as a student and  registered  for the eighth semester on 24.7.1989 as a student of the Univer- sity.  However, during this period respondent was  appointed as Assistant Scientist in the pay scale of Rs.2200-4000 vide letter  of  appointment dated 26.7.1989. The Dean  by  order dated 774 27.7.1989  permitted  the  respondent to  register  for  the eighth  semester.  This permission of the Dean  was  granted without  the  knowledge of the respondent having  become  an employee  of the University as a result of  the  appointment letter  dated 26.7.1989. The respondent joined the  post  of Assistant   Scientist  pursuant  to  this   appointment   on 29.7.1989.  The respondent thereafter applied for a  further extension  of his registration for the course for the  ninth semester.   The   Vice-Chancellor  vide  his   order   dated 22.11.1989  refused  the permission on the ground  that  the respondent having become an employee of the University,  was not  entitled to that benefit in accordance with the  provi- sions   applicable.  The  restrictions  in  regard   to   an employee/teacher  of the University for the purpose  are  as under: "(a)  An employee/teacher of the University is permitted  to undertake  doctoral  programme only in  subjects  for  which facilities  in  other Universities in the  country  are  not available. Forestry being one such subject in the petitioner University.  The  course  of study of  the  respondent  viz. Agriculture, is however, available in numerous other  insti- tutions and Universities in the country.

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(b) An employee/teacher is required to take study leave  and the same is admissible for pursuing approved courses outside the  University only. It is only in cases  where  facilities for the course of study which is not available elsewhere  in the country, an in-service teacher is permitted to undertake the same in the petitioner University. (c) Study leave is not granted as a matter of fight and  can be  granted  only after the employee/teacher  has  completed five years of continuous service in the University. (d)  Considering  the  number of employees  aspiring  to  do doctoral  programme the permission to do the same  is  given according to seniority."     An  employee  of  the University would  be  required  to complete the Ph.D. within eight years of recruitment failing which  increments are not admissible till completion of  the course.  An employee who is Assistant Professor or holds  an equivalent  post,  the respondent being  in  that  category, normally  becomes entitled to the senior scale  of  Rs.3000- 5000 after completion of eight years of service. However, in case  of an employee obtaining the Ph.D. degree  the  senior scale be- 775 comes applicable after five years instead of eight years. On completion   of   eight  years  in  the  senior   scale   an employee/teacher  is  promoted to the next  higher  rank  of reader.  Thus,  a  person getting a Ph.D.  degree  gets  the senior  scale ,earlier and consequently he is also  promoted earlier to the post of reader. There are 24 other  employees who are senior to the respondent and are awaiting completion of their five years service for doing the doctoral programme and  there  are eight other employees who  joined  initially with  the Ph.D. degree and are awaiting completion  of  five years  for  getting  the senior scale.  The  consequence  of granting  permission to the respondent for  registration  to the ninth semester would be to confer on the respondent  the benefit which is not available to an employee of the Univer- sity  because of the aforesaid restrictions and  this  would result in giving a benefit to the respondent contrary to the provisions  applicable while denying the same to others  who are senior to the respondent in employment. According to the appellants  this  was the reason for refusal  by  the  Vice- Chancellor of the permission sought by the respondent.     The respondent challenged this refusal of the permission to him by the Vice-Chancellor by order dated 22.11.89 in the High Court of Himachal Pradesh in C.W.P. No. 12 of 1990.  By the impugned judgment dated 10.4.1990, the Full Bench of the High Court by majority allowed the writ petition and direct- ed  the Vice-Chancellor to register the respondent  for  the remaining  two  semesters, namely, the ninth and  the  tenth semesters. Hence, this appeal by special leave.     The  grievance of the appellants is that the  result  of the  impugned majority judgment of the High Court  Would  be that  though  the respondent is an employee/teacher  of  the University he would be doing research in a subject in  which otherwise employees of the University are not permitted; the respondent  would get the senior scale earlier and  also  be promoted to the post of Reader much before 24 persons senior to him who are awaiting their turn in the order of seniority to undertake the doctoral programme after completion of  the requisite five years service which is contrary to the statu- tory  provisions; and the 24 other employees senior  to  the respondent  would be adversely affected even  without  being parties in the writ petition.     The  statutory  provisions applicable to  the  case  and their meaning is not in controversy. The only controversy is

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whether the respondent can be treated as an employee or  in- service candidate for the Ph.D. course on these facts so  as to  attract  the  restrictions which are relied  on  by  the University  for refusing the permission for registration  to the 776 ninth  and  tenth semesters sought by  the  respondent.  The majority  opinion  in the impugned judgment takes  the  view that the respondent is not an in-service candidate for  this purpose  as  he has already completed  eight  semesters  and requires  only  two or three months to  complete  the  Ph.D. course.  The majority has also been influenced by  the  fact that refusal of permission for completing the course at this stage would be hard on the respondent. The minority view  of Bhawani Singh, J., is that on appointment to a teaching post in  the University, the respondent incurred  the  disability and  attracted the restrictions which are applicable to  all employees of the University irrespective of the  consequence flowing  from it. In our opinion, the minority  judgment  of Bhawani Singh, J., on this point and the conclusion  reached by  him that the respondent attracted the  restrictions  at- taching  to all employees of the University on his  appoint- ment as a teacher of the University is the correct view  and the respondent cannot escape from the statutory restrictions which  became applicable to him as soon as he became an  in- service candidate for the remaining part of the Ph.D. course on  his taking up of the appointment in the University.  The further fact that the benefit claimed by the respondent,  if granted,  would result in the respondent getting  consequen- tial benefits much before his several seniors as a result of this permission alone cannot also be overlooked. It is not a case of merely giving some benefit to the respondent even by relaxation of some statutory provisions without causing  any prejudice  to  anyone else but a case where such  a  benefit granted to the respondent alone from amongst a large  number of  employees of the University would also seriously  preju- dice  their  claim and amount to an act  of  discrimination. Obviously,  such  a  course is impermissible.  This  is  the consequence  of the High Court judgment and,  therefore,  it must be set aside.     Consequently,  the  appeal is allowed and  the  impugned judgment  dated  10.4.1990  of the High  Court  of  Himachal Pradesh in C.W.P. No. 12 of 1990 is set aside. No costs. R.S.S.                                                Appeal allowed. 777