Delhi High Court
B.N. Mishra vs Lt. Governor Of Delhi on 2 December, 1996
Equivalent citations: 1996VAD(DELHI)619, 65(1997)DLT840, 1996(39)DRJ708
JUDGMENT Jaspal Singh, J.
(1) The dispute relates to the Delhi Institute of Technology, an autonomous Institution receiving full grant-in-aid from the Government of Delhi and Dr. B.N. Mishra," who, till the time of his attaining the age of superannuation on May 31, 1996, was its Director. Dr. Mishra, infact, appears to be associated with the Institute right from its very inception in the year 1983. -Earlier he was its Principal. Much before his attaining the age of superannuation he applied for his re-employment. To be precise that application, addressed to the President of the Institute, was of February 12, 1996. His grievance is. that he was not even considered for re-employment and that consequently the order of the Board of Governors dated May 16, 1996 directing one Prof. Raj Senani to look after the duties of the Director with effect from June 1, 1996 in addition to his normal duties is "absolutely illegal, arbitrary" and passed with "malaise intention, ulterior motives and in violation of the Memorandum of Association, Rules and Regulations as well as Service Rules of the Society as applicable to the Institute". He has thus filed this petition seeking a Writ of Mandamus or direction quashing the said Memorandum and for direction to the respondents to take decision for his re- employment/contractual appointment.
(2) Before I proceed further it may be noticed that the Institute was registered under the Societies Registration Act on July 12, 1987, that it has its Memorandum of Association and Rules and Regulations and so also Service Rules. It also needs to be noticed that the Institute is affiliated with the University of Delhi within the meaning of Clause (a) of Section 2 of the Delhi University Act, 1922.
(3) I think it also needs to be mentioned at this stage that the respondents have contested the writ petition and that, briefly stated, as per them the decision not to re-employ or offer contractual employment to the petitioner was perfectly legal and not tainted with malaises.
(4) Having provided, in the preceding paragraphs, a brief resume' of the dispute, let me, before coming into grip with the arguments advanced and the contentions raised, provide a necessary background to the relevant clauses of the Memorandum of Association and Rules & Regulations and so also of the Service Rules of the Institute. In the process I shall also be pointedly referring to a Resolution admittedly passed by the Executive Council of the University of Delhi on April, 1981 on which the learned counsel for the petitioner had leaned heavily.
(5) Coming first to the Memorandum of Association and Rules & Regulations for the Institute under the title "FUNCTIONS", Rule 4(xix) says that in order to attain the objectives of the Society it shall "perform the function" :- (XIX)to frame Rules and Regulations and bye- laws for service conditions of all categories of its employees taking full cognizance of such provisions existing in the University of Delhi and in accordance with the Ordinance Xii of the University of Delhi wherever applicable;"
Clause 10 which deals with the powers and functions of Board of Governors also needs to be noticed. More particularly Clauses 10(A)(i) and 10(A)(vii) which runs as under :- -Is 1 "POWERS:10(A)(i) to exercise the executive authority of the Institute subject to police directives of the General Council and/or the government and/or the University of Delhi. The policy directives of the University of Delhi will remain in force till the Institute remains affiliated to the University of Delhi Within the meaning of clause (a) of section 2 of the Delhi University Act 1922;" - "10(A)(vii) to create such posts as it may consider necessary for carrying on the work of the Institute and to prescribe the terms and conditions of service and appointment to these posts taking full congnizance of such provisions existing in the University of Delhi and ordinance Xii of the University of Delhi wherever applicable;"
Yet other clauses which need our attention arc clauses 11(1) & 24, which are as under :- "rf11(1): The Board of Governors shall meet at least once in three months." And "24. Transitory Provisions Subject to the formulation of service conditions of all categories of employees of the Institute the following transitory provisions shall apply; a) A person employed on a permanent basis shall be entitled to be in the service of the Institute until he completes the age of Sixty. b) If the Board of Governors is satisfied, it may reemploy any distinguished teacher, after he has attained the age of sixty years in accordance with the provisions of the ordinance Xii of the University of Delhi. Note : Director, and all other categories of staff recognised as Teachers by the University of Delhi are Teachers for this purpose. d) Rest of the service conditions including provisions for Ltc, Hba, Va, Medical facilities etc. will be as per Government Rules till the Society frames its own rules."
As far as the Service Rules are concerned, as per Rule 3.1.1 which defines "academic" it is clear that a Director falls within that definition. However, what is more important is Rule 3.24.2 which is in following terms : "RETIREMENT:Rule 3.24.2 : The Board may re-employ Academic staff after he has attained the age of 60 years for a period not exceeding 5 years i.e. 3 years in the first instance which may. be followed by another two years. Contractual appointment may also be made for 5 years in such cases."
As reference has been made to Ordinance 12 of the University and as it too is relevant for our purposes, it is time to look at its Rule 3(A)(2) which is in following terms :- "3(A)(2)The Governing Body of a College or an Institution may, with the approval of Vice- Chancellor, re-employ any distinguished teacher after he has attained the age of 60 years for a period not exceeding 5 years on the whole but not beyond his completing the age of 65 years, if the governing Body is satisfied that such re- employment is in the interest of the College or Institution."
We are now left with the Resolution of the Executive Council of the University dated 11th of April, 1981 to which reference has already been made by me above. The extract of the Resolution relevant for our purposes is as under :
"THE Head of the Department concerned/principal of the College as the case may be will initiate proposal for re-employment or otherwise, of the teacher concerned at least six months before the date of superannuation of the teacher concerned. In the cases of the Head of the Department, the Dean of 'Faculty, in the case of the Dean, the Pro-Vice-Chancellor and in the case of a Principal, the Chairman of the Governing Body will initiate proposal for their re-employment.
2.While forwarding the case of a teacher/principal, the Governing Body/Head of the Department as the case may be shall send the following information for the consideration of the Vice Chancellor:- (a) Complete bio-data of the teacher including teaching experience, classes and subjects taught. (b) In what way has the teacher distinguished himself as a teacher, namely in Research Publications, Books, Articles, the at tendancy at Seminars, Symposia Guidance of resesrach etc. and the extent to which his published work has been referred to by other scholars in the subject. (c) Involvement in extra curricular activities of the Institution. (d) Physical fitness. 3.i) The cases of the teacher not recommended for re-employment by the Department College concerned will also be submitted to the Vice-Chancellor giving reasons for the same. ii) The question whether any re-employment should or should not be granted to a Principal or a teacher shall not be decided by the Governing Body except with the prior approval of the Vice-Chancellor. "
It was argued on behalf of the petitioner that keeping in view the relevant clauses of the Memorandum of Association and Rules & Regulations for the Institute and so also the Service Rules and the relevant portions of Ordinance 12 and keeping in view the Resolution of the Executive Council of the Delhi University dated 11th April, 1981 the Institute ought to have initiated proposal for re-employment or, otherwise, of the petitioner at least six months before the date of his superannuation and that as no such recommendation was made for his re-employment, the case ought to have been submitted to the Vice Chancellor giving reasons for the same and that the question as to whether any re-employment should or should not be granted was neither considered by the Board of Governors nor any prior approval of the Vice Chancellor was sought in that direction and for that reason all the requirements were given a go bye. On the other hand the contention of Mr.Mukul Rohatgi, Advocate was that the petitioner had no right to be considered for re-employment and that, in any case, even if he had such a right, he was actually considered by the Board of Governors but was found not fit for re-employment. Can it be said that the petitioner had no right to be considered for re-employment? Rule 3.24.2 of the Service Rules empowers the Board to re-employ academic staff even after the age of super-annuation. Rule 3(A) (2) of Ordinance Xii the University of Delhi too speaks about re-employment with the approval of the Vice-Chancellor provided the Governing Body is satisfied that such re-employment is in the interest of the Institution. Even clause 24 of the Memorandum of Association and Rules and Regulations of the Institute provides for re-employment after the age of superannuation "in accordance with the provisions of the Ordinance Xii of the University of Delhi."
(6) It was argued that in clause 24 of the Memorandum of Association, Rule 3.24.2 of the Service Rules and Rule 3(A) (2) of the Ordinance the word "may" is used and that, as such, the requirement to 'consider' is not mandatory. However, I find myself unable to subscribe to this view. I have already reproduced the said provisions in the preceding paragraphs. A bare perusal of the said provisions would show that the word "may" has been used not in the context of obligation to consider for re-employment. It has been used only with regard to the question as to whether re-employment should be given or not. In other words the use of the word "may" merely denotes that on consideration the academic staff may or may not be re-employed. It conveys nothing more.
(7) The tenor of the provisions reproduced and referred to above clearly go to show that the Board of Governors is required to consider academic staff for re-employment. This is further fortified by the Resolution of the Executive Council of the University of April Ii, 1981. Does all this not show that -the Governing Body is bound to consider the question of re- employment?
(8) This leads to the next limb of the argument. Was the petitioner really considered for re-employment? Since Mr.Rohtagi had leaned heavily on the decision taken on 20.6.96 in the meeting of the Board of Governors, let us have a look at it too. This is how run the relevant portions: "IN connection with the retirement of Dr.B.N.Mishra, the Chairman informed the Board that this issue was discussed at length in .the Standing Committee and brought to the attention of the Board the following observations of the 11th meeting of the Standing Committee of the Board held on 13.6.96: "In spite of the fact that Dr.B.N.Mishra was informed about his forthcoming retirement on 31.5.96 by a communication vide ref. U.O. No. PA/DTTE/96/109 dated 23.4.96 of the Secretary (TE), he was repeatedly insisting on the question of his re-employment. The Standing Committee considers this kind of action on the part of Dr.B.N.Mishra not in good taste and considering that the Lg in his capacity as President of Dit Society has not agreed to his re-employment, recommends that no further action should be taken in this matter." In this context, the Chairman pointed out that although there were repeated representations and pressures on him to call a meeting of the Board to consider this issue, the meeting was not called as no discussion was considered desirable to overrule the decision of the Govt. which has categorically stated by an order issued on 23rd April, 1996 that Dr.Mishra must retire on 31st May, 1996. The question, therefore, of his reemployment can not be considered as a matter of right and since Dr.Mishra has already retired and has handed over the charge, this question cannot be reopened and should be declared as closed. The observations and recommendations of the Standing Committee of the Board noted above, were duly endorsed by the Board." As would be borne out from the passages reproduced above, the Board of Governors was so overtaken by the decision of the Government that it did not consider it fit to discuss the matter. The powers invested in the Board were thus completely abdicated and consequently, all the Rules and clauses referred to above were ignored and the Resolution of the University was made to take wings and fly away. I am sorry, I refuse to chew and digest the contention that the matter of re-employment was considered at the said meeting of the Governing Body.
Before drawing the curtain a word or two may be said about the malaises alleged by the petitioner. Though the authorities concerned failed to follow what they were required to, and the meeting of the Board of Governors was not called though it ought to have been, I am not convinced that malaises can be attributed on that score. The decision of the Lt. Governor (the Government) seems to have simply overpowered the Board of Governors. I need say no more. For the reasons recorded above, I allow the writ petition and direct that the question of re- employment of the petitioner be considered within a month.