Anu Malhotra JUDGMENT
Anu Malhotra, J.
1. By this petition, the petitioner seeks a writ in the nature of certiorari quashing the impugned letter/e-mail dated 6.6.2017 communicated by the respondent No. 1, i.e., the Indraprastha College for Women, as being arbitrary, whimsical, cryptic, mechanical, laconic and wholly unconstitutional.
2. The petitioner also seeks a writ of mandamus directing respondent No. 1 to issue a "No Objection Certificate/Relieving letter and seeks that the application of the petitioner be attested so that she can apply for the University Grants Commission's Refresher courses/Orientation programmes 2017-18.
3. The petitioner is an Assistant Professor in the Indraprastha College for Women and was confirmed on 30.9.2011 as Assistant Professor, Physical Education and Sports Department of IP College, Delhi University, New Delhi.
4. Disciplinary proceedings were initiated against the petitioner for alleged misconduct which are stated to be still pending and as submitted during the course of the hearing, the petitioner is under suspension since the last five years. The petitioner, however, seeks that she be allowed to pursue the University Grants Commissions' supported Orientation Programme and Refresher Course for teachers to be conducted by the University Grants Commission's academic staff and colleges and submits that as per the UGC's guidelines, the Universities and Colleges have to allow the interested, eligible teachers to attend the UGC-ASC Courses based on their eligibility, or else valid reasons would have to be intimated to the teachers concerned for not sending of the teachers for the purpose, as the courses so organized for the teachers are to ultimately benefit the University and the college, and the teacher.
5. During the course of submissions made on behalf of the petitioner, Mr. G. Tushar Rao, learned counsel appearing for the petitioner, submitted that the Orientation Programme (OR-89) for which the petitioner seeks recommendation from the respondent No. 1 is scheduled from 10.8.2017 to 8.9.2017 and the last date for registration thereof is 25th July, 2017.
6. Learned counsel for the petitioner further submitted that after the petitioner was placed under suspension, during the enquiry proceedings, respondent No. 1 vide letter dated 14.7.2014 issued her a Non-employment Certificate stating inter alia to the effect:
"during the period of suspension, there is no provision to grant you leave as per applicable rules. Kindly note that you will therefore not leave station without information to the concerned authority. Any programme/course that you pursue would require the prior information and sanction of the competent authority."
7. The petitioner, thus, submits that pursuant to the said letter dated 14.7.2014 and in compliance thereof, she applied to the Principal of respondent No. 1 vide letter dated 11.5.2017 seeking that her application forms which were duly annexed be attested and a No Objection Certificate/Relieving Letter, as the case may be, be issued to her so that she could fulfill the minimum academic requirement as per the UGC's rules and regulations.
8. The petitioner submits that she also applied for the Refresher Course in Physical Education and Sports at the Guru Nanak Dev University, Amritsar for the period 20.05.2017 to 09.06.2017 and had also simultaneously applied in the Jamia Millia Islamia, New Delhi for the Orientation Programme and had also applied for the Orientation programme in the Kurukshetra University for the Orientation Programme from 18.5.2017 to 14.6.2017 as also the Center for Professional Development in Higher Education, Delhi University for Orientation Programming and that all these application forms were duly submitted by the petitioner to the management for their attestation and obtaining No Objection Certificate.
9. The petitioner has further submitted that despite reminders sent by her on 12.5.2017 and 15.5.2017 for attestation of the application forms for the Orientation Programme/Refresher Courses 2017-18, there was no reply from the respondent No. 1. The petitioner further submits that after a few days, the petitioner received an e mail dated 16.5.2017 from respondent No. 1 communicating to her that the letter of NOC and attestation had been forwarded to the competent authority for necessary action. The petitioner submits that as there was a delay again on the part of the respondent No. 1, the petitioner sent another e mail dated 30.5.2017 again requesting the respondent No. 1 to issue the application forms with attestation and NOC from the concerned authorities.
10. It is further submitted that the respondent No. 1 vide an e mail dated 30.05.2017 at about 1:28 p.m. addressed to the petitioner informed as under:
" As already informed to you, your application for attestation of your forms, was forwarded to the chairman governing Body, since you are under suspension and the inquiry is still going on. You have also already been informed that the Chairman has sought legal counsel on your application and forms.
As and when we received the Chairman's response, we will inform you about the status of your application and the forms contained therein."
11. It was submitted on behalf of the petitioner that despite many requests made and personal visits by the petitioner to the respondent No. 1, no response was given by the Management to the request for grant of NOC and that the petitioner thereafter received an e mail dated 6.6.2017 from the respondent No. 1 informing her that her request had been rejected stating to the effect:
"I am directed by the Competent Authority to inform you that, as per legal advice received, the College cannot attest your application forms, issue NOC and relieving letter to you to attend the Orientation/Refresher Course 2017-2018."
12. It was further submitted by the learned counsel for the petitioner that no reasons whatsoever had been mentioned in the e mail dated 6.6.2011 of the respondent No. 1 as to what was the impediment in granting her permission to attend the Orientation Programme/Refresher Courses. The learned counsel for the petitioner further submitted that no reasons have been recorded in writing by the respondent No. 1 as to why she had not been allowed to join the Orientation Programme/Refresher Courses which were for the benefit of the teachers and institutions and that till the time the petitioner is on the rolls of the respondent No. 1 she has a right to undertake the Orientation Programme/Refresher Courses to enhance her educational qualifications for the benefit of the college and for herself. Inter alia, the petitioner has submitted that the respondent No. 1 was under an obligation to grant a No Objection Certificate to the petitioner unless there were some valid and legally tenable reasons, and that the rejection of her request to pursue the Orientation and Refresher courses by the respondent No. 1 was with the sole view to punish the petitioner before the conclusion of the enquiry proceedings and to deprive her of her fundamental right to enhance her educational qualification.
13. On behalf of respondent No. 2, i.e., University of Delhi, it was submitted that it had no role to play in the matter and was only arrayed as a proforma party.
14. The prayers made in the petition were, however, vehemently opposed on behalf of the respondent No. 1, i.e., the Indraprastha College for Women by Mr. Rajesh Gogna, learned counsel appearing on behalf of respondent No. 1 submitting to the effect that the petitioner being under suspension, under no circumstances can she be 'relieved' from the services of the school and that the college cannot attest her application forms nor issue her a No Objection Certificate/Relieving Letter to attend the Orientation Programme/Refresher Courses.
15. It was also submitted on behalf of respondent No. 1 that the enquiry proceedings were in progress and that several dates of proceedings have been fixed in the enquiry proceedings and that the petitioner was not allowing the proceedings to be concluded.
16. It was further submitted by the respondent No. 1 that the recommendations required on the application forms for participating in the UGC's Human Resources Development Programme were to the effect
(i) "Our College/University is included in the list of institutions under Sec. 2 (f) of the UGC Act;
(ii) Our College comes in the purview of the Section 12 (B) of the UGC Act.
(iii) Our College does not come in the purview of the Section 12(B) of the UGC Act, but has been affiliated to the University of ......................for at least 2 years;
(iv) The application of the above named teacher is forwarded with the recommendation that when selected, he/she will be relieved in time to participate in the above course and will be treated on Duty Leave; and
(v) The information given above by the applicant is true, complete and correct."
(emphasis supplied)
17. It was submitted on behalf of the respondent No. 1 that the information to be given by the respondent No. 1 was to be true, complete and correct as per Clause (v) herein above and it was, thus, submitted on behalf of respondent No. 1 that the respondent No. 1 could not certify that the information given in the form was complete, true and correct.
18. Furthermore, it was submitted on behalf of the respondent No. 1 that though the earlier impugned letter dated 6.6.2017 sent by the respondent No. 1 to the petitioner informing her that as per legal advice received, the college could not attest her application forms nor issue any No Objection Certificate or any Relieving Letter to her to attend the Orientation Programme/Refresher Courses 2017-18 was without giving reasons for the same, the reasons for declining the request of the petition had been detailed vide a speaking order dated 6.7.2017 sent to the petitioner herein to the effect that:
"I am directed by the Management to issue a Speaking Order in the matter of rejection of your application for issue of NOC and relieving letter to attend Refresher/Orientation Courses.
In continuation of the communication sent to you on email by the college on 6 June 2017 you are informed as follows:
i. That as per College records, there are discrepancies regarding the calculation of Total Experience as claimed by you. You have a total of 9 months of ad-hoc service in IP College with breaks. (22 July 2009 to 22 November 2009, 24 November, 2009 to 24 March, 2010 and 26 March 2010 to 30 April 2010).
ii. That as per "UGC Regulation on Minimum Qualification for Appointments for Teachers and other Academic Staff in the Universities and College and Measures for Maintenance of Standards in Higher Education 2010", counting of past services under CAS is possible only under defined conditions, through due process and approval. These have not been met in your case. Refer to The Gazette of India, September, 18, 2010, part III-Sec 4 on page 7903 at point No. 10.
iii. That for the period of ad-hoc service claimed with your previous employer, Aditi Mahavidyalaya, University of Delhi, there is no record of the same with the College, and the College cannot endorse and admit the service period claimed by you in this regard.
iv. That for the purpose of calculation of your Total Experience in IP College, it is at present, about 1 year and 11 months, i.e., from 29 September 2010 to 21 August 2012;
v. That Physical Education is not taught in I.P. College, as an Academic Subject.
vi. That the period of suspension cannot be considered as spent on duty, especially for the purpose of calculations as defined under the categories of CAS, which inter-alia requires quantification of direct engagement and quantum of other duties actually, discharge during the assessment period. Refer to The Gazette of India, September 18, 2010 Part III-Sec 4 Appendix III Table-1 at page 7947.
vii. That as per applicable norms, an employee under suspension is not entitled to leave.
In view of all of the above, the College is constrained to reject your application for attestation, issue of NOC and relieving letter."
(emphasis supplied)
19. It was reiterated through this stated speaking order of the respondent No. 1 that as per applicable norms, an employee under suspension is not entitled to leave and the period of suspension cannot be considered as spent on duty especially for the purpose of calculations as defined under the category CAS which, inter alia, require quantification of direct engagement and quantum of other duties actually discharged during the assessment period.
20. Reliance was also placed on behalf of respondent No. 1 on Clause 13 of Swamy's Handbook dealing with 'grant of leave during suspension' to the effect that FR-55 provides that, " leave may not be granted to a government servant under suspension" and that Rule 2 to Clause 15 of the same rules provides to the effect that "an application of a Government servant for appointment, whether by direct recruitment, transfer on deputation or transfer, to any other post should not be considered/forwarded if he is under suspension" and that "Vigilance clearance may not be granted to any officer under suspension for deputation, empanelment, etc.."
21. Reliance was also placed on behalf of respondent on the verdict of the Supreme Court in State of Punjab v. Jaswant Singh Kanwar [MANU/SC/0790/2013 : (2014) 13 SCC 622] to submit that the term 'suspend' would mean to debar usually for a time, from any privilege, the execution of an office or from the enjoyment of an income and that by reasons of suspension, powers, functions and privileges remain in abeyance but one continues to be subjected to the same discipline and penalties and to the same authorities and that the discretionary definition of suspension as detailed herein above makes it clear that during the period of suspension, all privileges and benefits attached to the office are temporarily suspended unless the period of suspension is considered as the period spent on duty.
22. The respondent No. 1, thus, submitted that there was no infirmity in the order dated 6.6.2017 nor in the speaking order dated 6.6.2017 whereby the request of the petitioner that she be issued the No Objection Certificate/Relieving Letter was rejected by the respondent No. 1 and that her application form be duly attested so that the petitioner could apply for the Orientation Programme/Refresher Course 2017-18 as the same could not have been so granted.
23. On behalf of the petitioner, reliance was placed on the verdict of the Supreme Court in Mohinder Singh Gill & Another v. The Chief Election Commissioner, New Delhi & Others; MANU/SC/0209/1977 : AIR 1978 SUPREME COURT 851 to submit that the order dated 6.6.2017 is of the nature which did not permit her to join the Orientation Programme/Refresher Courses and the non-issuance of the No Objection Certificate to the petitioner had to be based on certain grounds and its validity had to be viewed and judged by the reasons mentioned and the same cannot be supplemented by fresh reasons in the shape of an affidavit, or otherwise an order bad in the beginning may, by the time it comes to court on account of a challenge, gets validated by additional grounds later brought out.
24. Reliance was placed on this verdict further on observation in para 8 to the effect "Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do".
25. The learned counsel for the petitioner Mr. G. Tushar Rao thus submitted that as per the UGC guidelines itself she was entitled to participate in the Orientation Programme/Refresher Courses 2017-18 being conducted by the UGC which courses have been provided to help teachers to exchange their experiences with each other and that as per the eligibility conditions for teachers to attend the course, it was prescribed thereby as under:
"Courses are convened for in service teachers who are eligible as per UGC-ASC rules and regulations. The newly appointed teachers may have to attend the orientation programme/course up to 6 years of continuous services and also even after 6 years of service if the orientation programme has to be attended by the lecturers under career advancement scheme. Then after a gap of one year, such teachers may opt for Refresher course. The eligibility for attending Refresher course for teachers who have not attended earlier Orientation programme has been reduced to "two years" from 'five years". However, the gap in two successive Refresher courses should normally be "one year" and may be relaxed if it is essential for the teacher to fulfil eligibility condition for his career advancement.
Lecturers working in the Universities and Colleges, who are included in the list of Colleges under Section 2(f) of the UGC Act, even though they may not yet be fit under 12-B of the UGC Act, may be invited to participate in the Refresher courses. It has also been agreed that teachers of colleges which do not yet come within the purview of Section 2(f), but have been affiliated to a University for at least 5 years, be permitted to participate in the Refresher courses.
The temporary/contract teachers, who have been teaching for at least two academic sessions in an Institution which has been affiliated to a University for at least two years may be allowed to participate in the Orientation Programmes/Refresher Courses to enhance their skills."
(emphasis supplied)
It was, thus, submitted on behalf of the petitioner that there was no time limit nor length of duration of service of a teacher in a particular school had been spelt out by the Government, for ascertaining the eligibility for participation in the Orientation programme or Refresher Courses prescribed by the UGC guidelines for the eligibility conditions.
26. During the proceedings on 10.7.2017, the respondent No. 1 was directed to specify on an affidavit of its authorized representative as to what is the length of service required for a teacher in the institution for being eligible to undergo the UGC supported orientation programme and refresher courses for teachers. Though no such affidavit was filed, it was submitted by the learned counsel for respondent No. 1, that no such stipulated terms or length of service of the teacher has been prescribed to make a person eligible to apply for the UGC Orientation Programme/Refresher Courses.
27. Along with the petition, the petitioner has also placed the University Grants Commission's notification dated 11.7.2016 in which the minimum academic performance and service requirements for promotion of teachers in universities and colleges are prescribed inter alia which are to the effect that :
28. It was thus submitted on behalf of the petitioner that the minimum academic performance and service requirement for promotion of teachers in University and colleges required the petitioner to undertake one Orientation Programme and one Refresher/research methodological course of two or three weeks duration.
29. It is essential to observe that along with the petition, the petitioner also filed the UGC norms about the Orientation Programme on the "Subject Refresher Course" which indicates that the 'Eligibility' required was:
"Eligibility
Lecturers working in the Universities and Colleges, who are included in the list of College under Section 2(f) of the UGC Act, even though they may not yet be fit under 12-B of the UGC Act, may be invited to participate in the Orientation and Refresher Courses. The teachers of colleges, which do not yet come within the purview of Section 2(f), but have been affiliated to a University for at least 5 years, be permitted to participate in the courses. "
and that the requirement for an Orientation Programme was:
"For Orientation Program:
Newly appointed lecturers up to six years of continuous service and all those teachers who require Orientation Programme for getting higher grade. Attendance of Orientation Programme should be a condition for confirmation and the same course be counted for getting promotion to senior scale as required under Career Advancement Scheme."
and that the requirement for a Refresher Course:
"For Refresher Course:
Participation in Orientation Programme be a prerequisite for admission to Refresher Course. Thereafter, with a gap of one year they can opt for Refresher Course. Also there should be a minimum gap of one year between two Refresher Courses. Such courses are for in-service teachers who are eligible as per UGC-ASC rules and regulations. The newly appointed teachers up to 6 years of continuous service and eligible for Orientation. There after a gap of one year, such teacher may opt for Refresher Course. The eligibility for attending Refresher Course for teachers who have not attended earlier Orientation course has been reduced to "two years" from "five years". However, the gap in two successive Refresher Course should normally be "one year "and may be relaxed if adequate number of participants are not available or it is essential for the teacher to fulfil eligibility condition for his career advancement. "
30. The UGC norms about Orientation Programme/Subject Refresher Course and the submissions made on behalf of the respondent No. 1, make it apparent that for getting any promotion to senior scale, the minimum Academic Performance and screening/selection criteria include attending one Orientation and one Refresher/Research Methodology course of 2/3 weeks' duration for promotion to the higher stage 2 from stage 1 or equivalent cadres.
31. The eligibility criteria put forth in the UGC norms about the Orientation Programme/Subject Refresher Courses do not prescribe any period of length of service which permits a teacher to participate in the Orientation Programme/Subject Refresher Courses, and rather it has been prescribed that newly appointed lecturers upto six years of continuous service are eligible for the Orientation Programme and only those applicants who have attended one Orientation Programme can be one of the applicants for the Refresher Course.
32. Even as per the guidelines of the UGC supported Orientation Programmes qua the eligibility condition, it is mentioned even qua temporary/contract teachers, that those of such teachers, who have been teaching for at least two academic sessions in an institution operated by the University for at least two years may be allowed to participate in the Orientation Programmes/Refresher Courses to enhance their skill. Thus apparently a confirmed teacher and the present petitioner (even though she is presently under suspension), apparently is on a better footing than a temporary/contract teacher who can also be given an opportunity to participate in the Orientation Programme/Refresher Courses to enhance their skills.
33. As already observed herein above, it was submitted on behalf of the respondent No. 1 that there is no period of length of service prescribed for a teacher to participate in the UGC supported Orientation Programme or Refresher Course for teachers.
34. Taking all these aspects into account including the aspect that there are enquiry proceedings pending against the petitioner, which have not yet been concluded, qua which it has been submitted on behalf of the respondent No. 1 that delay in conclusion of the enquiry proceedings was due to dilatory tactics adopted by the petitioner, which has been refuted on behalf of the petitioner, it is essential to observe that even if till conclusion of the enquiry proceedings, during which the official, i.e. the petitioner herein, is under suspension, even if she is held not entitled to leave during the period that she is under suspension, as per Clause 13 of Swamy's Handbook dealing with the grant of leave to Government servants if made applicable to the petitioner, it cannot be overlooked that in the event of the petitioner being exonerated in the enquiry proceedings she would have missed her chance for promotion in the terms of the UGC norms and guidelines if she did not have the requisite academic performance requirements and screening/selection criteria which would be grossly unfair and would cause irreparable damage to her career advancement. The petitioner, thus, cannot be denied her right of getting an opportunity to participate in Orientation/Refresher Courses conducted by the UGC, merely because she is under suspension and the enquiry proceedings are under progress, for if she is exonerated of charges against her she could be redeemed back to her original position in her establishment.
35. Furthermore it is essential to observe that no prejudice whatsoever would be caused to the respondents if the petitioner is allowed to participate in the Orientation Programme/Refresher Courses conducted by the UGC.
36. In these circumstances, the petition is allowed and the respondent No. 1 is directed to issue a No Objection Certificate to the petitioner for registration and participation in the Orientation Programme/Refresher Courses conducted by the UGC for the year 2017-18.
37. Thus the letter/e-mail dated 6.6.2017 communicated by the respondent No. 1 to the petitioner along with order dated 6.7.2017 submitted during the course of the proceedings on behalf of respondent No. 1 rejecting the application of the petitioner for attestation and issuance of No Objection Certificate and Relieving Letter are hereby quashed and set aside.
38. The respondent No. 1 is also directed to attest the application form of the petitioner for participation in the Orientation Programme/Refresher Courses to be conducted by the UGC for the year 2017-18 but may mention the period for which the petitioner has been under suspension, and the aspect of disciplinary proceedings being pending against her.
39. However, expenses for attending such courses conducted by the UGC shall be borne by the petitioner herself till the period she is under suspension.
40. It is essential, however, to observe that the grant of directions to the respondent No. 1 to attest the application form of the petitioner for participation in the Orientation Programme/Refresher Courses conducted by the UGC and the direction for issuance of a No Objection Certificate to the petitioner for participation in the said courses shall not in any manner reflect upon the enquiry proceedings which are pending against the petitioner, which have essentially apparently to continue as per rules.
41. The prayer in the writ petition and the application CM No. 23361/2017 are disposed of accordingly.
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