Uttarakhand High Court
Manoj Prasad Raturi And Others ..... ... vs Hemvati Nandan Bahuguna Garhwal ... on 18 October, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
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HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 3 of 2018
Manoj Prasad Raturi and Others ..... Petitioners
Versus
Hemvati Nandan Bahuguna Garhwal University Srinagar
and Others ......Respondents
With
Writ Petition (S/S) No. 102 of 2018
Ravindra Kumar Singh and Others ..... Petitioners
Versus
Hemvati Nandan Bahuguna Garhwal University Srinagar
and Others ......Respondents
Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Shubhang
Dobhal, Advocate for the petitioners.
Dr. K.H. Gupta, Advocate for respondent nos. 1 and 2.
Mr. Vikas Pande, Advocate for respondent no. 3.
Mr. Shobhit Saharia, Advocate for the interveners.
Hon'ble Ravindra Maithani, J. (Oral)
Since, common order dated 04.09.2017 of the review committee is under challenge in both these writ petitions, they are being decided by this common judgment.
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2. Heard learned counsel for the parties and perused the records.
3. The facts necessary to appreciate the controversy is put in chronological order, as hereunder:
(i) The HNB Garhwal University (for short, "the State University") Srinagar, Pauri Garhwal, was established under the Uttar Pradesh State Universities Act of 1973. The petitioners were appointed in the State University as Data Entry Operator (DEO) on various dates.
(ii) On 15.01.2009, the State University converted into a Central University ("the university") under the Central University Act of 2009. The University Grants Commission ("the UGC") constituted a Rationalisation Committee ("the RC") on 22.02.2012 to consider the matter relating to the rationalization of cadre structure and designations, pay and allowances and related matters of non-teaching employees of the State University.
(iii) The RC submitted its report and recommended that the posts of Data Entry Operator may be rationalised as Upper Divisional Clerk ("the 3 UDC") after taking option from the incumbents and subject to the condition that the incumbents of these posts shall be placed at the bottom of the cadre of the UDC, as per rules.
(iv) The recommendations of the RC were approved by the UGC in its 511th meeting held on 21.12.2015.
(v) The University thereafter constituted an implementation committee ("the IC"). The IC submitted its report recommending for implementation of the report of RC. The recommendation of IC was to be placed before the Executive Council of the University ("the EC").
(vi) In the meanwhile representations were secured from various employees. Pursuant to which, University constituted an Anomaly Committee ("the AC") in the month of May, 2016. The report of the AC was submitted to the UGC in the month of July, 2016. In the meanwhile some of the petitioners filed various writ petitions (WPSS Nos. 2230, 2329, 2332, 2016 and 2331 of 2016) in this court.
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(vii) The petitions were decided on 24.03.2017 and the Court directed the UGC to take, a final decision on the recommendation of the AC within a period of three weeks from the date of judgment. Thereafter, respondent/University shall give effect to the observation/recommendation made by the UGC within a period of ten weeks.
(viii) The UGC reviewed its decision in its meeting held on 04.09.201. The decision of the UGC taken on 04.09.2017 was conveyed to the University by a communication dated 02.11.2017. It is impugned herein.
4. It is the case of the petitioners that based on the recommendations of the RC, the University had sought options from them and they had exercised their options to be rationalised with the post of the UDC, therefore, after exercising the rights by the petitioners for their rationalisation with the UDC, the UGC could not have reviewed the earlier recommendation of RC and the report of AC could not have overriding effect on the earlier report of RC. Therefore, according to the petitioners, the 5 decision taken on 04.09.2017 by the UGC, reviewing the earlier recommendation of RC is bad in the eye of law.
5. On the other hand, it is the case of the University that before the recommendation of the RC could have been implemented, representations were received from a number of employees of the University, therefore, the matter was taken up before the EC. Subsequently, the AC was constituted and based on the recommendation of the AC, the matter was further forwarded to the UGC for considering recommendation of AC. After considering the recommendation of AC, the UGC further reviewed the earlier recommendation of RC and approved it in its meeting held on 04.09.2017, which have been conveyed to the University by a communication dated 02.11.2017.
6. The UGC in its counter affidavit has also simply narrated the factual aspects.
7. Learned Senior Counsel appearing for the petitioners would submit that review is the creation of statute. Unless statute provides for it, review cannot be done. The RC recommendations were approved by the 6 UGC and they have sent it for implementation. Pursuant to which, the petitioners had also exercised their options. It is argued that the UGC could not have reviewed the earlier accepted recommendation of RC. It is without any legal sanction. Therefore, the impugned resolution dated 04.09.2017 of the UGC deserves to be quashed.
8. Learned senior counsel also raised following points in his submission:-
(i) The order dated 24.03.2017 passed in the petitions does not permit the UGC to review its earlier approval accorded to the recommendation of RC.
(ii) The UGC while upsetting the earlier recommendation of RC has had no legal sanction; no reasons; no basis.
(iii) The recommendation itself makes it explicitly clear that it was done under compulsion.
Learned counsel read the lines written with regard to review of the decision of RC in its communication dated 02.11.2017 of the UGC, which reads as follows; regarding merger of the DEO with UDC and other cadres like 7 Accountant, Store Keeper etc. To the accepted designation in the administrative cadre structure, the committee did not find any merit in the submission of different forums. The rationalisation committee has given proper justification in support of such recommendations, keeping in view the guidelines issued by the UGC from time to time and in conformity with various cadres of Central University. Inspite of it, it was brought of the notice of the committee that merger of 24 DEOs with the cadre of UDCs would adversely affect the promotional avenues of a large number of existing LDCs with long years of service. The representatives of the University also press the continuation of the DEO as separate cadre as there is serious resentment in the University on this issue. Therefore, keeping in view the representations of the employees, union and the specific request of the University authorities, the Committee recommends the following; It is argued that these wordings make it explicitly clear that the 8 recommendation of RC was rationale based on reasons and justified. There was no reason to disturb the earlier recommendation of RC, but under pressure the UGC recommended for review of it. It is argued that it cannot be a ground for review.
9. On the other hand, learned counsel appearing for the UGC would submit that when the AC report was received by the UGC, the petitions were filed in this Court, in which, on 24.03.2017, an order was passed directing the UGC to take a decision on the report of the AC. It is argued that accordingly, the UGC acted as per the directions of the Court dated 24.03.2017, passed in the petitions.
10. Learned counsel for the UGC would submit that the UGC has acted under Section 12 Sub-section (d) and Sub-section (j) of the University Grants Commission Act, 1956.
11. Learned counsel appearing for the intervener would submit that based on the petitions, which were 9 filed by some of the petitioners, a decision has been taken by the UGC on the recommendation of AC. It is argued that whatever the UGC has done, while reviewing the earlier recommendation of the RC that has sanction of the order of this Court dated 24.03.2017, passed in the petitions. Therefore, it is argued there is no question of challenging the authority of the UGC in reviewing the decision.
12. Learned counsel would also submit that petitioners had not accrued any right. Their service conditions have not been changed to their disadvantage. Therefore, they cannot claim any relief in this petition.
13. A very short issue falls for consideration; factual aspects are not in dispute. The petitioners were appointed as DEOS in the State University. In the year 2009 when the State University was converted into the Central University, a RC was constituted by the UGC. The RC recommended that the DEOS may be adjusted as the UDC. It is the case of the petitioners that they had already exercised their right to option and opted for being merged in the UDC cadre; once the RC recommendations have been accepted by the UGC and sent for 10 implementation to the University, it could have been reviewed.
14. In support of his contention, the learned Senior counsel for the petitioners has placed reliance on the principle of law as laid down in the case of Naresh Kumar and Others vs. Government (NCT of Delhi) (2019) 9 Supreme Court Cases 416. In paragraph-13 of it the Hon'ble Supreme Court interalia discussed the power of review and observed as under:
"13. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasijudicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction. (Vide Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar [AIR 1965 SC 1457] and Harbhajan Singh v. Karam Singh [AIR 1966 SC 641].) 13. In Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghji [(1971) 3 SCC 844: AIR 1970 SC 1273], Major Chandra Bhan Singh v. Latafat Ullah Khan [(1979) 1 SCC 321], Kuntesh Gupta (Dr.) v. Hindu Kanya Mahavidyalaya [(1987) 4 SCC 525: 1987 SCC (L&S) 491: AIR 1987 SC 2186], State of Orissa v. Commr. of Land Records and Settlement [(1998) 7 SCC 162] and Sunita Jain v. Pawan Kumar Jain [(2008) 2 SCC 705 : (2008) 1 SCC (Cri) 537] this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in the 11 absence of any statutory provision for the same is a nullity, being without jurisdiction.
14. Therefore, in view of the above, the law on the point can be summarised to the effect that in the absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification /modification/ correction is not permissible."
15. It is undisputed that review is a creation of statute and judicial order cannot be reviewed unless such authority is empowered under the statute by which it is created to review its order; of course, there are certain exceptions to it as well, for example fraud.
16. The fact remains that the petitioners were not appointed as the UDCs. After exercising the right, to options, the process was still midway, when the AC was constituted. There are actions, which are classified as administrative actions; quasi-judicial action and judicial actions. The Court wanted to know from the learned senior counsel for the petitioners as to under what category the recommendation of the RC would fall and under what category the resolution dated 04.09.2017 of the UGC would fall. Can it be termed as a judicial order or quasi judicial order or an administrative order?
17. Learned senior counsel would reply in whatever category it falls it should meet the requirement of law. There should be reasons for reviewing the order. 12 Undoubtedly, any action which is reversed should be based on reasons.
18. After the State University was converted into the University in the year 2009, the process of rationalisation was taken up, Qua the petitioners it has not yet been finalised. There is no question of any review as such to any final order. Midway when the RC recommendations were approved by the UGC and they were sent for implementation, the matter was re-agitated not only on the university level where an AC was constituted and its recommendation was forwarded to UGC, but some of the petitioners also challenged the action of University for constituting AC in the petitions before this Court.
19. During the course of hearing, learned senior counsel for the petitioners has placed before the Court a copy of petitions filed by the petitioner Manoj Prasad Raturi and others at that juncture. The reliefs claimed in that petition admittedly are as follows:
"(i) Declare inaction on the part of respondent no. 1 and 2 in implementing the recommendation of rationalization committee constituted by UGC in respect of the post of Data Entry Operator, as unjust and illegal.
(ii) Issue a writ, order or direction in the nature of mandamus commanding respondent no. 1 and 2 13 to forthwith implement the report of rationalization committee headed by Dr. B.K. Mahapatra by converting the post of Data Entry Operator to Upper Divisional Clerk."
20. The orders passed by this Court on 24.03.2017 in the petitions, filed by Manoj Prasad Raturi and Others is as follows:
"The Rationalisation Committee was constituted in February, 2016. The Rationalisation Committee submitted its report, which is at page no. 65, Annexure No. 6 to the writ petition. Thereafter, Implementation Committee was constituted. The report of the Rationalisation Committee was placed before the Implementation Committee. The Implementation Committee raised certain objections. Thereafter the Anomaly Committee was constituted. The respondent- University sent the recommendations/ observations of the Anomaly Committee to the U.G.C. on 12.07.2016. The U.G.C. informed the respondents on 03.01.2017 that the final decision thereon shall be taken by the UGC itself.
Accordingly, the writ petition is disposed of with the direction to the UGC to take final decision on the recommendations of the Anomaly Committee within a period of three weeks from today. Thereafter, respondent/University shall give effect to the observation/recommendations made by the UGC within a further period of ten weeks."
21. The petitioner Manoj Prasad Raturi had sought directions that the University may be directed to implement the recommendation of the RC constituted by the UGC. This relief has not been granted, instead the Court definitely accorded approval to the constitution of AC and its consideration by the UGC. The UGC has taken 14 a decision. It cannot be said that UGC has upset something, which has attained finality. The action of the UGC has definitely the backing of the order of the Court also, which was passed on 24.03.2017 in the petitions.
22. At this stage, it may be pertinent to note as to what was suggested to the DEOS by the UGC after reviewing entire recommendation of the RC. In its meeting held on 04.09.2017, the UGC suggested a separate cadre of the DEOS. The recommendations of DEO as approved is as hereunder:-
"4A. Specific observations/recommendations of the Committee pertaining to the submission of the Local committee:
On perusal of the observations contained in the report of the local committee submitted to the Secretary to UGC vide letter dated 12th July, 2016 of the Registrar, the Committee revisited its recommendations especially with regard to the cadres against which representations have been received. The Committee also perused the representations received from the employees of the University and noted the highlights of the presentations of the Registrar and the Finance Officer on 6.01.2017. Further, the committee met the officer bearers of the Non-teaching union of the University as per the specific request of the Registrar/Finance Officer and took note of their oral and written submissions. Even a few employees also submitted their representations as per the request of the University Administration.
Accordingly, the point-wise observations of the UGC Rationalization Committee with reference to certain cadres on which the Local Committee has primarily focused at the concluding part of its report 15 (due to discontentment of a few employees constituting a microscopic minority) are as under:
Data Entry Operators-
(a) Regarding the merger of the DEO with UDC and other cadres like Accountant, Store-keeper etc. to the accepted designations in the administrative cadre structure, the Committee did not find any merit in the submissions of different forums. The Rationalization Committee has given proper justification in support of such recommendations, keeping in view the guidelines issued by the UGC from time to time and in conformity with various cadres of the central universities. In spite of it, it was brought to the notice of the Committee that merger of 24 DEOS with the cadre of UDCS would adversely affect the promotional avenues of a large number of existing LDCs with long years of service.
The representatives of the university also pressed hard for continuation of the DEOS as a separate cadre as there has been serious resentment in the university on this issue. Therefore, keeping in view the representations of the employees, union and the specific request of the university authorities, the Committee recommends the following:-
The Data Entry Operator may be allowed to continue as a separate cadre and may be considered as a part of the ICT services cadre. In order to create a proper pyramid structure and to provide promotional avenues to the Data Entry Operators, the Committee noted that:
a) At present there are two sanctioned posts of Technical Assistants in the scale of pay of Rs.
4500- 7000 (pre revised) of which one post has been vacant.
b) There are 24 posts of Data Entry Operators in the pre-revised pay of Rs. 4000-6000 (Pre revised) and all the posts have been filled up. In order to have a proper structure of ICT services, the committee recommended the following:
1. Eight posts of Data Entry Operators may be upgraded as Technical Assistants (ICT) in 16 the Grade Pay of Rs. 2800 and thus taking the total sanctioned strength of Technical Assistant (ICT) from 2 to 10.
2. Up-gradation of posts will have minimum financial implications to the extent of increase in the Grade pay only.
Consequently, there will be 16 posts of Data Entry Operators after up-gradation of 8 posts and promotion of eligible DEOS against these posts. The promotion will however, be subject to fulfilment of prescribed qualifications for the post of Technical Assistant.
3. The University may frame appropriate Cadre Recruitment Rules under the ICT Cadre to provide promotional avenues to the Data Entry Operator as Technical Assistant (ICT). Further, promotional avenues to the post of Computer Operator may be made available from the feeder cadre of Technical Assistant (ICT) subject to the fulfilment of the qualification as prescribed in the CRR.
4. The required arrangements to provide appropriate training for the growth of the DEOS may be made.
5. With the above-mentioned stipulations, there will be total Ten (10) posts of Technical Assistants in the GP of Rs. 2800 and the 16 posts of Data Entry Operators.
6. Whenever any post of Data Entry Operator against these 16 posts gets vacated due to any reason, the post may be merged with the cadre of UDC to provide proper pyramid structure to the Administrative cadre.
7. Over a period of time and there will be no feeder cadre for promotion to the post of Technical Assistant (ICT) and therefore, the University may review the CRR accordingly for appointment of suitable candidates by direct recruitment possessing relevant qualification as per need."
23. A bare perusal of the above reveals that the DEOS has been specified as a separate cadre as a part of ICT service cadre with promotional avenues. 17
24. In fact, the Court wanted to know from the petitioners as to what right had been accrued to them of which they have been divested? In fact, mere exercising options to some posts does not give any right to any employee. Nothing has been done to the disadvantage of the petitioners. It is not the case of the petitioners that their pay scale has been reduced; their posts have been Registrar General reduced; their promotional avenues have been reduced; as they were when they were recruited in the cadre.
25. Learned senior counsel would submit that, in fact, the University is adamant not to give the benefit of RC to the petitioners. He would refer to the recommendation of the review committee particularly clause-6, which speaks that whenever any post of Data Entry Operator against these 16 posts gets vacated due to any reason the post may be merged in the cadre of UDC to provide proper structure to the administrative cadre.
26. This, in view of this Court also does not give any right to the petitioners to claim that the UGC has no right to review the recommendation of RC. In fact, on behalf of the intervener it is argued that in the year 2016 18 when initially the UGC accepted the recommendation of RC in its meeting held on 21.12.2015, it wrote to the University that for any doubt/clarification, the matter may be referred to the UGC for consideration/ rectification. Based on these lines, it is argued that the AC was constituted and the matter was again forwarded to the UGC to consider the report of the AC. It is argued that such an action was permitted by the UGC. It hasananjay Chaturvedi) Registrar General been disputed on behalf of the petitioners on the ground that it speaks of doubt and clarification alone and it does not speak of review. The Court leaves it at it. Fact remains, doubts and clarification could have been forwarded to the UGC with regard to the implementation of the recommendation of RC. The University found certain difficulties in the the implementation of the recommendation of the RC, which was definitely based on the made by various employees. representations made Therefore, it cannot be said that the UGC has acted beyond its jurisdiction. It cannot be said that any legal right of the petitioners has been infringed in any manner.
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27. Therefore, this Court does not see any reason to make any interference. Accordingly, both the petitions are liable to be dismissed.
28. Both the petitions are dismissed.
(Ravindra Maithani, J.) 18.10.2022 Pooja