Punjab-Haryana High Court
Dr. V.K. Sharma And Others vs The State Of Haryana And Others on 21 March, 2013
Author: A.K. Sikri
Bench: A.K. Sikri, Rakesh Kumar Jain
CWP No. 1720 of 1998 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 1720 of 1998
Date of Decision : 21.03.2013
Dr. V.K. Sharma and others
...Petitioners
Versus
The State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE A.K. SIKRI, CHIEF JUSTICE
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. M.L. Sarin, Senior Advocate,
with Mr. Animesh Sharma, Advocate,
for the petitioners.
Mr. Anil Rathee, Additional Advocate General, Haryana.
Mr. R.K. Malik, Senior Advocate,
with Mr. Mohan Singla, Advocate,
for the University.
****
A.K. SIKRI, C.J.
This petition was filed in the year 1998, seeking a declaration to the effect that Sub Section(5) of Section 21 of the Kurukshetra University Act, as amended vide Kurukshetra University (Amendment) Act, 1997 (hereinafter referred to as the Act) is ultra-vires of Article 14 of the Constitution of India. Further prayer is that consequent notification dated 08.01.1998 issued thereto be also quashed.
2. In order to understand the implication of Section 21(5) of the Act; issuance of notification and how the notification dated 08.01.1998 prejudicially affects the rights of the petitioners herein, CWP No. 1720 of 1998 -2- we will have to go back in time to trace the events leading to the aforesaid amendment in Section 21 of the Act whereby Sub Section (5) was inducted and the notification dated 08.01.1998 was issued.
3. The petitioners herein joined as teachers in University College and University College of Education, Kurukshetra. Both these colleges are being maintained by the Kurukshetra University (hereinafter referred to as the University). The University has its various departments with faculties as well and teachers appointed therein are known as University teachers. Since the aforesaid two colleges, namely, University College and University College of Education, Kurukshetra are the colleges, teachers working therein are classified as 'college teachers'. Apart from these two colleges, which are maintained by the University itself, there are various private colleges aided and affiliated with the University known as affiliate colleges and the teachers working in those colleges are also described as 'college teachers'.
4. The University had framed 'Personal Promotion Scheme' on the pattern of Personal Promotion Scheme introduced by the University Grants Commission, which was applicable only to University teachers. Under this scheme, personal promotion after certain number of years of service was granted to the University teachers. The teachers could get promotion to the post of Reader from that of Lecturer and then Professor from that of Reader. Under this scheme, a Lecturer after serving for 13 years and if he was CWP No. 1720 of 1998 -3- having Ph.D. Degree to his credit, would become entitled for promotion on personal basis to the post of Reader. Since it was promotion personal to such a person, the person promoted would keep on holding substantive rank of feeder post. In other words, a Lecturer on promotion would be given a nomenclature and a pay scale on the post of Reader, but he would not occupy any sanctioned post of the Reader. On retirement of such an incumbent, the resultant vacancy, which would be caused, would be that of a Lecturer and not that of a Reader, as the promotion was personal to the incumbent.
5. Since the number of posts of Readers and Professors were limited and in order to avoid stagnation and on representations made by the Teachers Association, the Executive Council of the University in its meeting held on 03.12.1984 recommended to the government for approval that 'Personal Promotion Scheme' be also extended to the teachers working in these two colleges. This recommendation was not accepted by the government, as conveyed to the University vide letter dated 19.04.1985, as in the opinion of the government there was no justification in implementing the Personal Promotion Scheme in the two University maintained Colleges and Directorate of Correspondence Courses as it has not been introduced in the affiliated Colleges.
6. On receipt of this letter, the Pro-Vice Chancellor of the University clarified that the process of recruitment, terms and conditions of service and academic qualification of teachers CWP No. 1720 of 1998 -4- appointed in the two University maintained Colleges and Directorate of Correspondence Courses and of teachers in the University teaching departments are similar and that they cannot be equated with the University affiliated colleges. It was also stated that Personal Promotion Scheme has been in operation in the Regional Engineering College, Kurukshetra, as well as the Panjab University, Chandigarh and many other Universities have also introduced this Scheme. The detailed representation which the University had received from the Kurukshetra University Teachers Association was sent alongwith letter of the Pro-Vice Chancellor, to the Government for reconsideration of the entire matter.
7. The government, however, did not take any decision on the subject, which prompted many Lecturers working in the aforesaid two Colleges of the University to file CWP No. 7032 of 1988 in this Court, seeking extension of the said Personal Promotion Scheme to the two Colleges as well. This writ petition was decided on 26.08.1993 which contained direction to the government to take a decision in the matter within three months in the light of recommendations made by the Pro-Vice Chancellor. A decision was taken which was positive one. The University appointed a Committee to consider the question of renaming the University College, University College of Education and Directorate of Correspondence Courses. This Committee submitted its recommendations on 17.11.1993. The recommendations were CWP No. 1720 of 1998 -5- considered by the Executive Council and the Executive Council resolved that the Directorate of Correspondence Courses would be known as Department of Distance Education; University College of Education would be renamed as Department of Teachers Education and University College, Kurukshetra would be given the status of Department of Honours and Evening Studies. In essence, the intention was to treat the three Colleges as the Departments of the University.
8. To formalize this, amendment in Section 21(4) of the Act was required, which was also approved by the Executive Council. Thereafter, letter was written to the Chancellor (who is the Governor of the State on 22.05.1995) for according approval to the amendments approved by the Executive Council. Since the Chancellor wanted no objection of the University Grants Commission on the aforesaid amendments, this was also sought and the University Grants Commission gave its no objection. Thereafter, the Chancellor also accorded approval to the amendments/addition to statutes 8, 10, 12, 17, 20, 26, 27 and 28 of the statutes framed under the Act on 09.01.1996.
9. It is the case of the petitioners that for all intents and purposes the erstwhile Directorate of Correspondence Courses and University College became the Departments of University and it was made crystal clear by amending the statutes. The teachers of these departments were given all the benefits, privileges, status, pay scale CWP No. 1720 of 1998 -6- etc. at par with other teachers of the University Departments. There was no distinction between these three institutions even earlier to the amendment, but to put the whole matter beyond any doubt, the amendments were carried out after following detailed procedure. As a consequence of the amendment, the University Grants Commission's Career Advance Scheme was implemented.
10. Interviews were held accordingly and on that basis, on the recommendations of the Selection Committees, 21 lecturers in the Department of Honours and Evening Studies were given promotion to the post of Reader and two lecturers in the Department of Teachers Education and one in the Department of Distance Education were given the benefit of promotion to the post of Reader. These promotions were ordered under the University Grants Commission's Career Advancement Scheme. According to this Scheme, a lecturer who has spent 13 years in service and has acquired Ph.D. Degree was to be promoted on the post of Reader after a Committee comprising of experts found him suitable for promotion to that post.
11. Thereafter, the respondent University even made certain orders transferring teachers from the Department of Distance Education to the University Teaching Department treating them to be University Teachers.
12. According to the petitioners, at this juncture, when benefit was given to the petitioners, treating them at par with University CWP No. 1720 of 1998 -7- Teachers and even amendments in the statutes were made, as per the petitioners, it was not to the liking of the State Government i.e. respondent No. 1. The respondent No. 1 wanted the respondent No. 2 to withdraw the amendments. Since it did not succeed in its effort, the respondent No. 1 wrote to the Chancellor. However, it was realized that the Chancellor had no power to issue a direction to the University to amend or repeal a statute. It is alleged that keeping this object in mind, the impugned amendment is made to statutes 8, 10, 12, 17, 20, 26, 27 and 28 of the statutes framed under the Act on 09.01.1996 thereby amending Sub Section(5) of Section 21, arming the Chancellor with power to issue directions to the Executive Council either suo moto or on the advice of the government to make amendment or repeal the statute.
13. This provision i.e. Sub Section(5) of Section 21 of the Act reads as under:-
"(5) Notwithstanding anything contained in the foregoing sub-sections, the Chancellor, either suo motu or on the advice of the government, may direct the Executive Council, to make, amend or repeal the Statutes in respect of any matter specified by him and if the Executive Council fails to implement such a direction within 60 days of its receipt, the Chancellor may, after considering the reasons, if any, communicated by the Executive Council for its inability to comply with such directions, make, amend or repeal the Statutes suitably."
The plea of the petitioners is that the aforesaid provision gives unguided powers to the Chancellor and it is done with sole CWP No. 1720 of 1998 -8- intention to defeat the judgement of this Court in CWP No. 7032 of 1988.
14. Once the Chancellor acquired the aforesaid power, it issued direction to the Executive Council to repeal the amendments/additions, which were made to statutes 8, 10, 12, 17, 20, 26, 27 and 28. On this mandate of the Chancellor, the Executive Council passed Resolution No. 20 dated 03.01.1998, undoing the amendments/additions which were made, whereby the petitioners - teachers of the two colleges - were treated at par with the University Colleges and the earlier position has been restored. Effect of that is that the benefit of Personal Promotion Scheme, which was extended to the petitioners, stands withdrawn.
15. It is in this historical backdrop that the present petition is preferred questioning the validity of Section 21(5) of the Act and consequent notification dated 08.01.1998.
16. Mr. Sarin, learned Senior counsel appearing for the petitioners paraphrased his submissions in the following manner:-
(i) Sub Section(5) of Section 21 of the Act, as amended, confers upon the Chancellor arbitrary and unguided power, which is violative of Article 14 of the Constitution of India. It is argued that such unguided power cannot be legally conferred, as held by the Supreme Court in the case of Hari Chand Sarda Vs. Mizo District Council and another, AIR 1967 SC 829, wherein the Supreme Court held as under:-CWP No. 1720 of 1998 -9-
"A perusal of the Regulation shows that it nowhere provides any principles or standards on which the Executive Committee has to act in granting or refusing to grant the licence. The non- tribal trader either wishing to start a trade or continue his trade started on a grant of licence is entirely at the mercy of the Executive Committee for the grant or the renewal of a licence. There being no principles or standards laid down in the Regulation there are obviously no restraints or limits within which the power of the Executive Committee to refuse to grant or renew a licence is to be exercised. This situation is clearly seen from the fact that though section 9 of the Regulation authorises the Executive Committee to cancel a licence - presumably both permanent and temporary - if the licensee is convicted of contravention of any of the provisions of the Regulation, the power of refusal under section 3 is not limited or circumscribed by any such provision or any other criterion. The power of refusal is thus left entirely unguided and untrammeled. How arbitrary the exercise of such unguided power can be seen from the fact that the Executive Committee not only refused to renew the appellant's licence but also directed him to remove his property by the end of July 1960 and imposed a fine if he failed to do so."
Reference is also made to another judgement of the Supreme Court in State of Mysore Vs. S.R. Jayaram, AIR 1968 SC 346, wherein it was held as under:-
"The principle of recruitment by open competition aims at ensuring equality of opportunity in the matter of employment and obtaining the services of the most meritorious candidate. Rules 1 to 8, 9(1) and the rest part of r. 9(2) seek to achieve this aim. The latter part of r. 9(2) subverts and destroys the basic objectives of the CWP No. 1720 of 1998 -10- preceding rules. I vests in the Government an arbitrary power of patronage. Though r. 9(1) requires the appointment of successful candidates to Class I posts in the order of merit and thereafter to Class II post in the order of merit, r. 9(1) is subject to r. 9(2) and under the cover of r. 9(2) Government can even arrogate to itself the power of assigning a Class I post to a less meritorious and a Class II post to a more meritorious candidate. We hold that the latter part of r. 9(2) gives the Government an arbitrary power of ignoring the just claims of successful candidates for recruitment of offices under the State. It is violative of Arts. 14 and 16(1) of the Constitution and must be struck down.
Having regard to his rank in order of merit, the respondent had the right to be appointed to the post of Assistant Commissioner. As the offending part of r. 9 (2) is invalid, the State Government had no power to withhold the post from him. The High Court should, therefore, have directed the Government to appoint him to that post."
(ii) It is further submitted that in pursuance of this power, resolution is passed by the University and notification dated 08.01.1998 is issued, which is absolutely illegal, unconstitutional and arbitrary, as it is done to defeat the judgment of this Court in CWP No. 7032 of 1988, which is clearly impermissible. For this proposition, he relied upon the judgement of the Supreme Court in S.R. Bhagwat and others Vs The State of Mysore, JT 1995 (6) SC 444, wherein this proposition was explained in the following manner:-
"9. It is not in dispute between the parties that pursuant to the aforesaid direction CWP No. 1720 of 1998 -11- issued by the Division Bench of the High Court the respondent-State has considered the cases of all the petitioners for being granted deemed dates of promotions and they have been given such deemed dates of promotions. The aforesaid Decision of the Division Bench has become final between the parties. As consequential monetary benefits on the grant of deemed promotions to the petitioners as directed by the aforesaid Decision were not made available to the petitioners they filed Contempt Petitions in the High Court.
These Contempt Petitions were got adjourned from time to time before the High Court by the respondent-State. In the meantime the respondent-State resorted to its legislative powers and issued the impugned Ordinance which ultimately culminated into the impugned Act. By the impugned provisions of the Ordinance and the Act the actual financial benefits directed to be made available to the petitioners pursuant to the orders of the Division Bench of the High Court which had become final are sought to be taken away as can be seen from the scrutiny of the Act. It is under these circumstances that the petitioners filed this Petition under Article 32 for getting a declaration that the impugned provisions in so far as they tried to confiscate the financial benefits made available to them by the Writs of Mandamus issued by the High Court are null and void as they amount to legislative over-ruling of binding Judicial Decisions and seek to deprive them of their Fundamental Rights guaranteed under the Constitution."
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11. Having given our anxious consideration to rival contentions we have reached the conclusion that the impugned provision of the Act, namely, Section 11 Sub Section (2) is clearly ultra vires the power of the State Legislature as it CWP No. 1720 of 1998 -12- encroaches upon the judicial field and tries to over-rule the judicial decision binding between the parties and consequently the relevant sub-sections of Section 4 which are also in challenge will have to be read down as indicated hereinafter in this judgement. Before we advert to the relevant provisions of the impugned Karnataka Act it will be appropriate to keep in view the settled legal position governing the present controversy.
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19. We, therefore, strike down Section 11 Sub Section (2) as unconstitutional, illegal and void. So far as the underlined impugned portions of Section 4 Sub Sections (2), (3) and (8) are concerned, they clearly conflict with the binding direction issued by the Division Bench of the High Court against the respondent -
State and in favour of the petitioners. Once respondent - State had suffered the mandamus to give consequential financial benefits to the allottees like the petitioners on the basis of the deemed promotions such binding direction about payment of consequential monetary benefits cannot be nullified by the impugned provisions of Section 4. Therefore, the underlined portions of Sub Sections (2), (3) and (8) of Section 4 will have to be read down in the light of orders of the Court which have become final against the respondent - State and in so far as these provisions are CWP No. 1720 of 1998 -13- inconsistent with these final orders containing such directions of judicial authorities and competent Courts, these impugned provisions of Section 4 have to give way and to the extent of such inconsistency must be teated to be inoperative and ineffective. Accordingly, the aforesaid provisions are read down by observing that the statutory provisions contained in Sub Sections (2), (3) and (8) of Section 4 providing that such persons who have been given deemed promotions shall not be entitled to any arrears for the period prior to the date of their actual promotion, shall not apply in cases where directions to the contrary of competent Courts against the respondent - State have become final."
(iii) Learned Senior counsel also referred to the definition of "University Teachers" as contained in Section 2(i) of the Act to contend that petitioners, who are appointed as Lecturers in the Colleges run by the University, would be covered by the aforesaid definition and, therefore, they had to be treated at par with University teachers and were entitled to all the benefits.
(iv) Learned Senior counsel also relied upon another judgement of the Supreme Court in Air India Vs Nergesh Meerza and others, AIR 1981 SC 1829, wherein the Supreme Court had held as under:-
"76. In view of the authorities indicated above assuming that the two awards are binding on the petitioners, the serious question for consideration is whether the agreement, which may be binding on the parties, would estop them from challenging the Regulations on the ground that the same are void as being violative of Articles 14 or 19 of the Constitution. It is well settled that there can be no estoppel against a statute much less against constitutional provisions. If, therefore, we hold in agreement with the CWP No. 1720 of 1998 -14- argument of the petitioners that the provisions for termination and retirement are violative of Article 14 as being unreasonable and arbitrary, the Awards or the agreements confirmed by the Awards would be of no assistance to the Corporations."
Sustenance was also drawn from another judgement of Calcutta High Court in the case of M/s Neelambar Finvest Private Limited and others Vs The Calcutta Municipal Corporation and others, 2002 (4) ICC 802 wherein it was held as under:-
"It may further be mentioned here that a statute may not make a classification of persons or things for the purpose of applying its provision but may leave it to the discretion of the Government to select and classify the persons or things to whom its provisions will apply. In determining the question of validity or otherwise of such a statute, the Court will not strike down the law only because no classification appears on its face or because a discretion is given to Government to. make the selection or classification if it appears that the statute has laid clown any principle or policy for the guidance of exercise of discretion by the Government in the matter of selection or classification. If after scrutiny it appears to the court that it does not lay down any principle or policy in guiding the exercise of discretion by the Government in the matter of selection or classification, the Court will strike down such statute on the ground that it provides for delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situated and therefore the discrimination is inherent in the statute itself."
17. Learned counsel for the respondents countered the CWP No. 1720 of 1998 -15- aforesaid submissions arguing that the validity of a legislation (Section 21(5) of the Act in this case) cannot be questioned when the amendment is necessitated because of the reason that the Legislature feels that the interpretation of law in the judgement of the Court is not as it was actually intended to by the rule of law made by the Legislature. It is argued that the Legislature has plenary authority of legislation to change the law to take away the base of the judgement so as to make the judgement ineffective by amendment or repeal of law on which the judgement was based. He placed heavy reliance upon the judgement of the Supreme Court in S.S. Bola Vs B.D. Sardana, 1997(8) SCC 522 to contend that the amendment made was perfectly justified.
18. Mr. Rathee, learned Additional Advocate General, Haryana also submitted that on comparison of the petitioners who were working in these three colleges turned into departments with the colleges, it would be clearly discernible that there was no difference. He pointed out that in the department, a lecturer who was Ph.D. was entitled to senior scale on completion of five years of service and similarly a non-Ph.D. lecturer would be given selection grade on completion of eight years of service. Similar benefit was available to teachers in colleges. The only difference was that in the department, after eight years' service in senior scale, designation of Reader was also given, which was limited to Ph.D. teachers. Likewise, on completion of 10 years' service as Reader, designation of Professor is CWP No. 1720 of 1998 -16- accorded to such a teacher and these designations of Readers and Professors are not available in the colleges. However, pay scale of Lecturer selection grade and Reader was the same. He further brought out the following facts to contend that none of these petitioners is prejudiced in any manner:-
(i) Out of 64 petitioners, 30 have either retired/died (1,2,5,6,7,10,15,17,19,20,21,22,23,24,25,26,27,29,31,36,40,44,47, 48,51,52,55,59,61 & 63 = 30).
(ii) Six have joined in the departments - 30,39,40,43,57 & 62 =
6.
(iii) Pay scale of Lecturer Selection Grade (available in college) and Reader (available in Department) was same i.e. (3700-5700). No financial benefit was involved except promotion to the post of Reader.
(iv) Now all of them have been designated as Associate Professor (Rs. 37400-67000+9000 Grade Pay) which is available on rendering 3 years service as a Lecturer Selection Grade/Reader. He further submitted that vide Section 21(5) of the Act, no arbitrary and unguided power was given to the Chancellor.
19. Mr. Malik, learned senior counsel, who appeared for the University, argued on the same lines as Mr. Rathee, learned Additional Advocate General, Haryana.
20. We have given our due consideration to the respective submissions. From the facts and the arguments noted above, it would be clear that there are two aspects on which we need to give our decision. First is about the validity of Sub Section(5) of Section 21 and second issue pertains to the validity of Resolution No. 20 dated 03.01.1998 passed by the Executive Council of the University. We CWP No. 1720 of 1998 -17- proceed to deal with these issues hereafter.
21. Re:- Validity of Sub Section(5) of Section 21 of the Act:
This provision has already been extracted above. Section 21 of the Act deals with the appointments to teaching posts. Sub Section (1) thereof lays down that appointments to the teaching posts shall be made by the Executive Council on the recommendations of the Selection Committee. Sub Section (2) deals with appointments to non-teaching posts and Sub Section (3) gives power to the Vice Chancellor to make the appointments in respect of those posts which carry an initial salary of Rs. 400/- per mensem upto Rs. 659/- per mensem. We are not concerned with Sub Sections (2) and (3) in the instant case. Sub Section (4) gives power to the Vice Chancellor to make the appointments on adhoc or temporary basis for a period not exceeding six months. In that event, it is not possible or desirable to make regular appointment. However, where the appointing authority is Executive Council, Vice Chancellor is to report the appointment made by him on adhoc or temporary basis to the Executive Council in its next meeting. It is in this Section that Sub Section (5), with which we are concerned, is introduced stating that notwithstanding anything contained in the foregoing sub sections, the Chancellor is empowered to give directions to the Executive Council to make, amend or repeal the statutes in respect of any matter specified by him. This direction can be suo moto or on the advice of the government. In case, Executive Council fails to implement such a CWP No. 1720 of 1998 -18- direction, the Chancellor can himself make, amend or repeal the statutes suitably. The aforesaid provision is in a statute passed by the Legislature. Its validity cannot be questioned on the ground of malafides or that there was oblique motive of the Legislature in enacting a particular provision. The Supreme Court has repeated this legal proposition time and again. This legal principle is restated by the Apex Court in a recent judgement titled as State of Tamil Nadu and others Vs K. Shyam Sunder and others, JT 2011(9) SC 166 in a lucid manner which reads as under:-
"22. It has consistently been held by this Court that the doctrine of malafide does not involve any question of bonafide or malafide on the part of legislature as in such a case the Court is concerned to a limited issue of competence of the particular legislature to enact a particular law. If the legislature is competent to pass a particular enactment, the motives which impelled it to an act are really irrelevant.
xx xx xx xx xx xx xx xx xx xx xx xx 22.1 Motive of the legislature while enacting a Statute is inconsequential:
"Malice or motive is beside the point, and it is not permissible to suggest parliamentary incompetence on the score of mala fides."
22. A Division Bench of this Court in CWP Nos. 12482, 12300 and 15765 of 1996, wherein amendments made in the Maharshi Dayanand University Act and Kurukshetra University Act were challenged, repelled the said challenge in its judgement dated 28.02.1997 in the following manner:-
CWP No. 1720 of 1998 -19-
"The question that arises for consideration is whether the Haryana Legislature is competent to pass the impugned legislation. If the legislature has the competence and the legislation has not gone to violate any of the provisions contained in Part-III of the Constitution, this Court in exercise of the powers under Article 226 of the Constitution of India is not to strike down the legislation. The wisdom of the legislature and the policy lying behind the enactment are not to be the subject to judicial review. In exercise of the powers under Article 226 of the Constitution, this Court cannot substitute its policy for that of the legislature. Even if this Court entertains the view that the policy lying behind the legislation is not the correct one, this Court cannot upset the legislation. The provision contained in the Act may be opened to be abused or there may be possibilities of the above provision being abused by the government. That cannot be a ground for invalidating the enactment. When the validity of the legislation is in question, the Courts are to adjudge constitutionality by looking into the general provisions of the enactment and not by taking note of the possibilities of its abuse."
23. In coming to the aforesaid conclusion, the Division Bench had followed the judgement of the Apex Court in State of Andhra Pradesh and others Vs Mc Dowell & Co. and others, 1996(3) SC 679, wherein it was held that the State legislation can be struck down on two grounds alone, namely, (i) lack of legislative competence and
(ii) violation of any of the fundamental rights guaranteed in part-II of the Constitution or of any other Constitutional provision. It was also made clear in that judgement that there is no third ground to challenge an Act of the State Legislature. In this view of the matter, CWP No. 1720 of 1998 -20- the scope of enquiry by this Court is limited to see whether it covers field taken by any of the Central enactment, whether it violates any of the fundamental rights granted in part-III of the Constitution or of any other Constitutional provision.
24. The argument that this provision confers arbitrary and unguided power and is violative of the Article 14 of the Constitution of India is misplaced. The Executive Council is given power to make the statutes and it has to keep in mind Section 21(1) in this behalf which provides that on the commencement of the said Act, the statutes of the University shall be those as set out in the schedule. Sub Section (2) gives power to the Executive Council to make new or additional statutes or make, amend or repeal the statutes in any manner provided in the said Section. As per Sub Section (4), any new statute or addition to the statute or any amendment or repeal of a statute requires the approval of the Chancellor. The Chancellor is empowered to approve, disapprove or remit the matter for further consideration. Thus, when there cannot be any new statute or addition to the statute or amendment or repeal of a statute without the approval of the Chancellor, we fail to understand as to how power given to the Chancellor under Sub Section (5) becomes arbitrary, whereby he can direct the Executive Council to make, amend or repeal the statutes. We are clear in our mind that such a power given to the Chancellor in the aforesaid scheme of Section 21 is not arbitrary. It is only a particular direction, which is given in CWP No. 1720 of 1998 -21- exercise of the aforesaid power, which can be challenged as arbitrary and it is the exercise of that power which would be subject to judicial scrutiny and the Court may have to decide as to whether that particular power is exercised arbitrarily or validly. Thus, challenge to Sub Section(5) of Section 21 is hereby repelled.
25. The next question that falls for consideration is as to whether the decision of the University taken vide notification dated 08.01.1998 amounts to defeating the judgement of this Court in CWP No. 7032 of 1988. From the facts noted above, it may be recapitulated that the University had framed Personal Promotion Scheme on the pattern of similar scheme prevailing in the University Grants Commission, which was made applicable only to University teachers. The petitioners were teachers of two colleges, namely, University College and University College of Education. These colleges were taken over and are maintained by the University. On the plea that after this take over the petitioners had also become University teachers and the benefit of Personal Promotion Scheme should be extended to them, the petitioners filed CWP No. 7032 of 1988. In this writ petition, directions dated 26.08.1993 were given to the government to take a decision in the matter within three months in the light of recommendations made by Pro-Vice Chancellor, who had recommended to the government to extend the benefit of Personal Promotion Scheme to the teachers of these colleges as well. The University appointed the Committee which submitted its CWP No. 1720 of 1998 -22- recommendations on 17.11.1993 and on that basis the Executive Council is ordered that these two colleges shall be renamed as Department of Teachers Education and University College, Kurukshetra and shall be given the status of Department of Honours and Evening Studies. Treating them as departments, amendment was made in relevant statutes framed under the Act on 09.01.1996 and the teachers were accorded all those benefits, privileges, status and pay scale etc. which are enjoyed by the teachers of the University Department. It is these amendments which are undone by repealing those statutes, namely, statues 8, 10, 12, 17, 20, 26, 27 and 28 vide Resolution No. 20 dated 03.01.1998 at the instance of the Chancellor, who gave directions to this effect in exercise of his powers under Section 21(5) of the Act.
26. Thus, it cannot be said that the judgement of the Court is sought to be undone, inasmuch as there was no decision of the Court according the status of University teachers to the teaching faculty of the two colleges. The Court had given only directions to decide the matter and on that basis University took its own decision after appointing a Committee and receiving its recommendations which resulted in the amendment/additions to the aforesaid statutes and it is that decision which is reversed by repealing those statutes. Therefore, the principle which is advanced by learned senior counsel for the petitioners predicated on the judgement in S.R. Bhagwat (supra) may not be strictly applicable.
CWP No. 1720 of 1998 -23-
27. However, at the same time, it has to be borne in mind that the status of University teachers, which was given to the petitioners, taking conscience decision in this behalf is taken away. Therefore, according to us, the right question which arises for consideration is as to whether such a decision meets the test of reasonableness or it is arbitrary and offensive of Article 14 of the Constitution. As noted above, the matter was examined and recommendation to this effect was made by the Pro-Vice Chancellor to the government. Thereafter, in compliance with the directions of this Court contained in orders dated 26.08.1993 passed in CWP No. 7032 of 1988, an expert committee was appointed. This committee also, after looking into the entire gamut of the issue, submitted its recommendations on 17.11.1993. On the basis of that recommendations, the Executive Council had passed the resolution renaming the two colleges and giving the status of Department of Honours and Evening Studies. It is this decision which has been reversed. Therefore, we have to see as to whether there is any justification in reversing this decision.
28. The respondents have provided justification for the course of action. In the counter affidavit filed by the respondent No. 1, it is categorically mentioned that in pursuance of the directions given by this Court in CWP No. 7032 of 1988, the State Government had rejected the proposal of the respondent/University in regard to treating the University maintained colleges at par with the University Teaching Departments. For this, following reasons are given in the CWP No. 1720 of 1998 -24- reply filed by the State:-
"(i) The University allowed Personal Promotion Scheme in respect of teaching departments of the campus because research work is carried out there and there are posts of Readers and Professors.
(ii) There is a small difference in the qualifications for appointments in the University College and the teaching departments. There is no common seniority and the appointments are made by different selection committees.
(iii) Neither posts of Readers and Professors are sanctioned in colleges (including University College) nor research work is done.
(iv) Government had decided to allow Merit Promotion Scheme and not Personal Promotion Scheme w.e.f. 01.12.1985 in respect of University College and other colleges. Under this scheme the selection grade lecturers were given the pay scale of Rs. 1200-1840 w.e.f. 01.12.1985 and on the revision of pay scale they were given the pay scale of Rs. 3700-5700 w.e.f.
01.01.1986 which is equivalent to the post of Reader in teaching department."
29. It is argued that in the light of the above background, the University maintained colleges and other government/private colleges cannot be treated at par with the University Teaching Departments and also the post of Readers and Professors are not sanctioned in these colleges. It is also submitted by the State that when it was found that the University had wrongly amended the various statutes in utter disregard to the decision of the State Government earlier communicated to the University just to give CWP No. 1720 of 1998 -25- undue benefit to the petitioners, the only course open was to give directions in terms of Section 21(5) of the Act, which was done. The decision is also sought to be justified on the ground that it entails financial implications as well as administrative problems. Even the prior approval of the State Government, as required under various provisions of the Act, was not obtained while carrying out those amendments.
30. We find that the aforesaid reasons for treating government colleges below than the University Department are proper and the amendment/repeal of the statutes carried out in the aforesaid manner, therefore, cannot be validly questioned. The petitioners have not been able to make out the case for interference by this Court. We, thus, find the petition as denuded of merits and dismiss the same. However, there shall be no order as to costs.
(A.K. SIKRI) CHIEF JUSTICE (RAKESH KUMAR JAIN) JUDGE 21.03.2013 Amodh