Allahabad High Court
Shesh Ram And 3 Others vs State Of U.P.Thru Princ.Secy. Deptt.Of ... on 29 September, 2022
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on: 26.08.2022 Delivered on: 29.09.2022 Court No. - 6 Case :- WRIT - A No. - 6006 of 2002 Petitioner :- Shesh Ram And 3 Others Respondent :- State Of U.P.Thru Princ.Secy. Deptt.Of Higher Education Lko. Counsel for Petitioner :- Prashant Chandra,Ajay Madhavan,Anurag Verma,Mata Prasad Yadav,Neeraj K Srivastva,Romit Seth,Tung Nath Tiwari Counsel for Respondent :- C.S.C.,Shishir Jain with Case :- WRIT - A No. - 6004 of 2002 Petitioner :- Gajendra Singh And 5 Others Respondent :- State Of U.P.Thru Princ.Secy. Deptt.Of Higher Education Lko. Counsel for Petitioner :- Prashant Chandra,Anurag Verma,Mahima Pahwa,P.K.Khare,Riya Ghosh,Sharaddha Agarwal Counsel for Respondent :- C.S.C. with Case :- WRIT - A No. - 2586 of 2002 Petitioner :- Gopi Krishna Shukla Respondent :- State Of U.P.Through Prin.Secy.Higher Education And 2 Or.S Counsel for Petitioner :- Prashant Chandra,Anurag Verma,Illegible,Riya Ghosh Counsel for Respondent :- C.S.C.,Chandra Shekher Pandey,Dr. R.K. Srivastava with Case :- WRIT - A No. - 4574 of 2002 Petitioner :- Sushil Kumar Srivastava Respondent :- State Of U.P. Through Principal Secy. Deptt. Of Higher Counsel for Petitioner :- Prashant Chandra,Anurag Verma,Mahima Pahwa,Riya Ghosh Counsel for Respondent :- C.S.C.] with Case :- WRIT - A No. - 5164 of 2002 Petitioner :- Vikas Tiwari And 10 Ors. Respondent :- State Of U.P. Through Its Principal Secy. Deptt. Of Higher Counsel for Petitioner :- Prashant Chandra,Mahima Pahwa.,P.K.Khare,Riya Ghosh Counsel for Respondent :- C.S.C.,Anurag Verma with Case :- WRIT - A No. - 5177 of 2002 Petitioner :- Ram Hit Chawadhary And 2 Ors. Respondent :- State Of U.P. Through Its Principal Secy. Deptt. Of Higher Counsel for Petitioner :- Prashnat Chandra,Anurag Verma,Mahima Pahwa,Riya Ghosh Counsel for Respondent :- C.S.C. with Case :- WRIT - A No. - 5642 of 2002 Petitioner :- Shyam Kishore Dwivedi Respondent :- State Of U.P.Through Prin.Secy.Higher Education And 2 Ors Counsel for Petitioner :- Prasant Chandra,Mahima Pahwa,P.K.Khare,Riya Ghosh Counsel for Respondent :- C.S.C.,Anurag Verma with Case :- WRIT - A No. - 5643 of 2002 Petitioner :- Pramod Kumar Respondent :- State Of U.P.Through Prin.Secy.Higher Education And 2 Ors Counsel for Petitioner :- Prasant Chandra,Anurag Verma,Kartikey Dubey,Varsha Sharma Counsel for Respondent :- C.S.C. with Case :- WRIT - A No. - 5645 of 2002 Petitioner :- Devendra Pratap Singh Respondent :- State Of U.P.Through Prin.Secy.Higher Education Counsel for Petitioner :- Prasant Chandra,Anurag Verma,Mahima Pahwa,P.K.Khare,Riya Ghosh Counsel for Respondent :- C.S.C. with Case :- WRIT - A No. - 5646 of 2002 Petitioner :- Subodh Kumar Nigam Respondent :- State Of U.P.Through Prin.Secy.Higher Education Counsel for Petitioner :- Prasant Chandra,Anurag Verma,Mahima Pahwa,Riya Ghosh Counsel for Respondent :- C.S.C. with Case :- WRIT - A No. - 611 of 2004 Petitioner :- Manish Verma Respondent :- State Of U.P.Through Its Prin. Secy. Deptt. Of Higher Counsel for Petitioner :- Prashant Chandra,Anurag Verma Counsel for Respondent :- C.S.C. Hon'ble Irshad Ali,J.
(1) Heard Sri Prashant Chandra, learned Senior Counsel assisted by Ms. Radhika Singh and Sri Satish Chandra Sitapuri, learned counsel for the petitioners, Sri Alok Sharma, learned Additional C.S.C. for respondent - State and Sri Shishir Jain, learned counsel for respondent - Committee of Management.
(2) This bunch of writ petitions is being decided by means of a common judgment and order treating WRIT-A No.- 6006 of 2002 to be leading writ petition.
(3) Brief facts of the writ petitions, separately, are as under:
Writ-A No.6006 of 2002:
a) On 22.04.1999, an order was passed by this Court in Writ Petition No.17179 of 1999, whereby direction was issued to the respondents to decide the representation of the Committee of Management taking into consideration the norms fixed by the Government as well as the recommendations of Director Higher Education.
b) On 31.08.1999, a High Power Committee decided the representation of Committee of Management and sanctioned 64 posts of non teaching staffs in D.A.V. College, Kanpur and D.B.S. College, Kanpur by sanctioning one post of Animal Catcher, one post of Glass Blower, one post of Gas Man and one post of Peon by imposing condition that the State shall not bear any liabilities with regard to payment of salary and the management would have to bear the burden.
c) In pursuance to aforesaid sanction, name of petitioner Nos.1 to 4 were called from employment exchange and the meeting of selection committee was held on 27.02.2000 and selection of the petitioners was made.
d) The petitioners were appointed by the committee of management on the respective posts and when no action was taken by respondent No.3 on the communication dated 02.03.2000, they joined the duties on 13.12.2000.
e) Since then, the petitioners are discharging duty on their respective posts to the satisfaction of concerned authorities, however, they have not been paid salary, as the Committee of Management of the college has taken a stand that they do not have funds to pay in as much as, 80% of the fee collection is being deposited with the State Government, however, the respondents are not releasing the salary of the petitioners in view of condition imposed in the order dated 31.08.1999.
f) For the payment of salary to the petitioners, the committee of management has made several representations, but no heed has been paid to the same.
g) Petitioner No.3 -Rajendra Kumar died in the year 2008 and on his place, his wife has been granted appointment, who is getting regular salary month by month.
Writ-A No.6004 of 2002:
In pursuance to order passed by this Court in Writ Petition No.17179 of 1999 on 22.04.1999 and in pursuance to recommendation made by the high power committee on 31.08.1999 for sanction of 64 posts of non-teaching staff, wherein six posts were sanctioned for Book Lifters (Pustakalaya Parichar), a selection committee was constituted, who appointed the petitioners on the post of Book Lifter on 13.12.2000 calling their name from employment exchange. Since then, the petitioners are discharging their duties but no salary has been paid to them in view of condition levelled in order dated 31.08.1999.
Writ - A No. - 2586 of 2002:
In pursuance to order passed by this Court in Writ Petition No.17179 of 1999 on 22.04.1999 and in pursuance to recommendation made by the high power committee on 31.08.1999 for sanction of 64 posts of non-teaching staff, wherein one post of Cataloguer in each; D.A.V. College, Kanpur and D.B.S. College, Kanpur was sanctioned, a selection committee was constituted, who appointed the petitioner on the post of Cataloguer on 26.03.2001. Since then, the petitioner is discharging his duties but no salary has been paid to him in view of condition levelled in order dated 22.03.2001.
Writ - A No. - 4574 of 2002:
In pursuance to order passed by this Court in Writ Petition No.17179 of 1999 on 22.04.1999 and in pursuance to recommendation made by the high power committee on 31.08.1999 for sanction of 64 posts of non-teaching staff, wherein one post of Library Clerk was sanctioned. In pursuance thereof, an advertisement was issued in two newspapers on 01.09.1999 and the petitioner applied in pursuance thereof. In the meeting held of Selection Committee on 26.03.2000, name of the petitioner was recommended and the Committee of Management approved the recommendation made by the Selection Committee on 27.03.2000 and on 28.03.2000, the Committee of Management forwarded the recommendations of Selection Committee to respondent No.3, however, no action has been taken by respondent No.3 till date. On 18.07.2000, the petitioner was appointed on the post of Library Clerk. Since then, the petitioner is discharging his duties but no salary has been paid to him in view of condition levelled in order dated 31.08.1999.
WRIT - A No.-5164 of 2002:
In pursuance to order passed by this Court in Writ Petition No.17179 of 1999 on 22.04.1999 and in pursuance to recommendation made by the high power committee on 31.08.1999 for sanction of 64 posts of non-teaching staff, wherein 32 posts of Routine Clerks were sanctioned. In pursuance thereof, advertisements were issued in two newspapers on 31.08.1999 & 01.09.1999 and the petitioners applied in pursuance thereof. In the meeting held of Selection Committee on 09.04.2000, name of the petitioners were recommended and the Committee of Management approved the recommendation made by the Selection Committee on 25.05.2000 and on 31.05.2000, the Committee of Management forwarded the recommendations of Selection Committee to respondent No.3, however, no action has been taken by respondent No.3 till date. On 04.12.2000, the petitioners were appointed on the post of Routine Clerks. Since then, the petitioners are discharging their duties but no salary has been paid to them in view of condition levelled in order dated 31.08.1999.
Writ - A No. - 5177 of 2002:
In pursuance to order passed by this Court in Writ Petition No.17179 of 1999 on 22.04.1999 and in pursuance to recommendation made by the high power committee on 31.08.1999 for sanction of 64 posts of non-teaching staff, wherein one post of Animal Catcher, one post of Glass Blower and one post of Gas Man was sanctioned. A meeting of the Selection Committee was held on 27.02.2000, who appointed the petitioners on their respective posts 13.12.2000 calling their name from employment exchange. Since then, the petitioners are discharging their duties but no salary has been paid to them in view of condition levelled in order dated 31.08.1999.
Writ - A No. - 5642 of 2002:
In pursuance to order passed by this Court in Writ Petition No.17179 of 1999 on 22.04.1999 and in pursuance to recommendation made by the High Power Committee on 31.08.1999 for sanction of 64 posts of non-teaching staff, wherein 32 posts of Library Clerks were sanctioned. In pursuance thereof, advertisements were issued in two newspapers on 31.08.1999 & 01.09.1999 and the petitioners applied in pursuance thereof. In the meeting held of Selection Committee on 09.04.2000, name of the petitioners were recommended and the Committee of Management approved the recommendation made by the Selection Committee on 25.05.2000 and on 31.05.2000, the Committee of Management forwarded the recommendations of Selection Committee to respondent No.3, however, no action has been taken by respondent No.3 till date. On 04.12.2000, the petitioners were appointed on the post of Library Clerks. Since then, the petitioners are discharging their duties but no salary has been paid to them in view of condition levelled in order dated 31.08.1999.
WRIT - A No. - 5643 of 2002:
In pursuance to order passed by this Court in Writ Petition No.17179 of 1999 on 22.04.1999 and in pursuance to recommendation made by the High Power Committee on 31.08.1999 for sanction of 64 posts of non-teaching staff, wherein 32 posts of Routine Clerks were sanctioned in D.A.V. College, Kanpur and 7+2 posts in D.B.S. College, Kanpur. In pursuance thereof, advertisements were issued in two newspapers on 31.08.1999 & 01.09.1999 and the petitioners applied in pursuance thereof. In the meeting held of Selection Committee on 26.03.2000, name of the petitioners were recommended and the Committee of Management approved the recommendation made by the Selection Committee on 27.03.2000 and on 28.03.2000, the Committee of Management forwarded the recommendations of Selection Committee to respondent No.3, however, no action has been taken by respondent No.3 till date. On 18.07.2000, the petitioners were appointed on the post of Routine Clerks. Since then, the petitioners are discharging their duties but no salary has been paid to them in view of condition levelled in order dated 31.08.1999.
WRIT - A No. - 5645 of 2002:
In pursuance to order passed by this Court in Writ Petition No.17179 of 1999 on 22.04.1999 and in pursuance to recommendation made by the High Power Committee on 31.08.1999 for sanction of 64 posts of non-teaching staff, wherein 32 posts of Routine Clerks were sanctioned. In pursuance thereof, advertisements were issued in two newspapers on 31.08.1999 & 01.09.1999 and the petitioners applied in pursuance thereof. In the meeting held of Selection Committee on 09.04.2000, name of the petitioners were recommended and the Committee of Management approved the recommendation made by the Selection Committee on 25.05.2000 and on 31.05.2000, the Committee of Management forwarded the recommendations of Selection Committee to respondent No.3, however, no action has been taken by respondent No.3 till date. On 04.12.2000, the petitioners were appointed on the post of Routine Clerks. Since then, the petitioners are discharging their duties but no salary has been paid to them in view of condition levelled in order dated 31.08.1999.
WRIT - A No. - 5646 of 2002:
In pursuance to order passed by this Court in Writ Petition No.17179 of 1999 on 22.04.1999 and in pursuance to recommendation made by the High Power Committee on 31.08.1999 for sanction of 64 posts of non-teaching staff, wherein 32 posts of Routine Clerks were sanctioned. In pursuance thereof, advertisements were issued in two newspapers on 31.08.1999 & 01.09.1999 and the petitioners applied in pursuance thereof. In the meeting held of Selection Committee on 09.04.2000, name of the petitioners were recommended and the Committee of Management approved the recommendation made by the Selection Committee on 25.05.2000 and on 31.05.2000, the Committee of Management forwarded the recommendations of Selection Committee to respondent No.3, however, no action has been taken by respondent No.3 till date. On 04.12.2000, the petitioners were appointed on the post of Routine Clerks. Since then, the petitioners are discharging their duties but no salary has been paid to them in view of condition levelled in order dated 31.08.1999.
WRIT - A No. - 611 of 2004:
In pursuance to order passed by this Court in Writ Petition No.17179 of 1999 on 22.04.1999 and in pursuance to recommendation made by the High Power Committee on 31.08.1999 for sanction of 64 posts of non-teaching staff, wherein 32 posts of Routine Clerks were sanctioned. In pursuance thereof, advertisements were issued in two newspapers on 31.08.1999 & 01.09.1999 and the petitioner applied in pursuance thereof. In the meeting held of Selection Committee on 09.04.2000, name of the petitioner was recommended and the Committee of Management approved the recommendation made by the Selection Committee on 25.05.2000 and on 31.05.2000, the Committee of Management forwarded the recommendations of Selection Committee to respondent No.3, however, no action has been taken by respondent No.3 till date. On 04.12.2000, the petitioner was appointed on the post of Routine Clerk. Since then, the petitioners is discharging his duties but no salary has been paid to him in view of condition levelled in order dated 31.08.1999.
(4) By means of the present bunch of writ petitions, the petitioners have prayed for quashing the condition incorporated in Government Order dated 31.08.1999 and consequent order dated 22.03.2001, by which a rider has been imposed in payment of salary to teachers and other employees against 64 santioned posts.
(5) The Government Order dated 31.08.1999 was issued in compliance of direction issued by this Court in Writ Petition No.30819 of 1998 & Writ Petition No.17179 of 1999 on 24.09.1998 & 22.04.1999, respectively.
(6) Section 60-E of U.P. State Universities Act, 1973 provides that it is responsibility of the State Government to pay the salary of teachers and other employees of the colleges.
(7) In bunch of writ petitions with leading Writ Petition No.2586 (S/S) of 2002, an interim order was granted by this Court on 26.08.2002, which reads as under:
"........................
...........................................
All the three petitions have been filed by the non-teaching personnel. Petitioner of Writ Petition No.2586 (SS) of 2002 is working in D.B.S. College, Kanpur, whereas the petitioners of Writ Petition Nos.3126 (SS) of 2002 and 4574 (SS) of 2002 are working in D.A.V. College, Kanpur. The petitioners' contention is that they have not been paid their salary or any allowances for the last two years because of a condition levied by the Government while sanctioning creation of 64 posts. A perusal of the Sanctioned Order dated August 31, 1999 (Annexure 1) would reveal that as many as 64 posts were sanctioned by the Government for D.A.V. College and D.B.S. College, Kanpur, however, with the condition that the expenditures on account of salary and other allowances pertaining to these 64 posts will be borne by the Management of the Colleges. Learned Counsel appearing on behalf of the petitioners has placed reliance upon a citation reported in [(2001) 8 SCC 378] Laxman Dundappa Dhamanekar and another Vs. Management of Vishwa Bharata Seva Samiti and another and the provisions of Section 60-E of the U.P. State Universities Act, 1973. As a matter of fact, under the state Universities Act, it is the liability of the State Government to pay salaries to the teachers and employees of every college. The terms of Section - 60-E are mandatory which make it obligatory for the State Government to bear the financial load so far as the payment of salary to the teachers and employees is concerned. In its counter - affidavit filed in writ petition no. 3126 (SS) of 2002, the State Government has conceded that the condition regarding payment of salaries to the 64 posts sanctioned for D.A.V. College and D.B.S. College, Kanpur was incorporated in the Order referred to above as the Government had financial constraints. However, the fact remains that the mandatory provision of Section 60-E of the Universities Act cannot be subjugated to the factum of the poor economy of the State. In other words, financial constraints of the Government cannot override the provisions of Section 60-E of the Universities Act. Learned Counsel appearing on behalf of the Colleges had not at the relevant time of the sanction being granted submitted any undertaking conceding its liability to make payment of the salary to the 64 employees, who might be appointed.
Subject to any assurance or undertaking, if any, submitted by the Managements of the Colleges, it is provided -- that if the petitioners are in continuous services of the Colleges, the State Government is directed to pay the petitioners' salary while discharging its obligation under Section 60-E of the Universities Act."
(8) Learned Senior Counsel for the petitioners submitted that the Government Order dated 31.08.1999 and consequent order dated 22.03.2001 are ultra vires to the provisions of Section 60-B&E of U.P. State Universities Act, 1973 (hereinafter referred to as, 'Act of 1973') as it seeks to supplant and render otiose the provisions of the said section by an executive order.
(9) He further submitted that under the provisions of Section 60-E of Act of 1973, the State Government has been held liable for payment of salary of teachers and other employees of every college due in respect of any period after 31st March, 1975.
(10) He next submitted that the manner of appointment of non teaching staff is regulated by the provisions contained under Chapter 20 of the Ist Statute of Kanpur University, whereas Statute 21.01, which is in reference to Section 49(e) of Act of 1973, defines a salaried employee not being a teacher of a college and Statute 21.02(1) confers power upon the management to make appointments of non teaching staffs. Under Statute 21.03 (4), the appointments made by the Committee of Management and the Principal are required to be submitted for approval before the Director, Higher Education and in case the same is not approved within two months from the date of its receipt, the appointments shall be deemed to have been approved.
(11) He further submitted that in view of Section 60-E of Act of 1973, any action or order contrary to any authority or committee being per se illegal and arbitrary is liable to be quashed.
(12) He next submitted that appointment of the petitioners has been made strictly in accordance with Act of 1973, therefore, payment of salary to them from State Government cannot be denied.
(13) He next submitted that one Purushottam Singh, who has been appointed on the post of Cataloguer in DAV College, Kanpur vide order dated 22.12.1999 is being paid salary from the State Government, as there has been no embargo levied while sanctioning his post, therefore, discrimination between the petitioners while sanctioning the post by imposing rider to not pay salary from the State Government is in breach of provisions of Articles 14 & 16 of the Constitution of India.
(14) Learned Senior Counsel for the petitioners further submitted that salary is the property of the employees and it cannot be denied by levelling a rider in contravention to statutes of Act of 1973 and the same is in contravention to provisions of Article 300-A of the Constitution of India.
(15) He further submitted that the State Government cannot impose conditions through executive fiat, which are inconsistent with the statutory provisions. In support of his submissions, he placed reliance upon certain judgments, which are as under:
a) Dr. Rajinder Singh Vs. State of Punjab and others; [(2001) 5 SCC 482].
b) Commissioner of Central Excise, Bolpur Vs. Ratan Melting & Wire Industries; [(2008) 13 SCC 1].
c) T.N. Housing Board Vs. N. Balasubramaniun and others; [(2004) 6 SCC 85].
d) Punjab Water Supply and Sewerage and others Vs. Ranjodh Singh and others; [(2007) 2 SCC 491].
e) Mahadeo Bhau Khilare (MANE) and others Vs. State of Maharashtra and others; [(2007) 5 SCC 524].
f) Sandur Micro Circuits Limited Vs. Commissioner of Central Excise, Belgaum; [(2008) 14 SCC 336].
g) Ajaya Kumar Das Vs. State of Orissa and others; [(2011) 11 SCC 136].
(16) On the other hand, learned A.C.S.C. submitted that it is the Committee of Management, who is aggrieved party due to non providing of funds to ensure payment of salary to the petitioners. He further submitted that against non sanctioned posts, liability of payment of salary lies upon the Committee of Management and not upon the State Government. In support of his submissions, he placed reliance upon a full bench judgment in the case of State of U.P. and others Vs. C/M Sri Sukhpal Intermediate College, Tirhut, Sultanpur and others; [2015 (33) LCD 1398].
(17) I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
(18) To resolve the controversy involved in the present writ petition, the judgments relied upon by learned counsel for the parties are being quoted below:
Judgments cited by learned senior counsel for the petitioners:
a) Dr. Rajinder Singh Vs. State of Punjab and others (Supra):
"7. The settled position of law is that no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law."
b) Commissioner of Central Excise, Bolpur Vs. Ratan Melting & Wire Industries (Supra):
"7. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the court to declare what the particular provision of statute says and it is not for the executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law."
c) Laxman Dundappa Dhamanekar and another Vs. Management of Vishwa Bahrata Seva Samiti and another (Supra):
"11. The aforesaid non-statutory rule was substituted in the Code by government order dated 17.6.67 and whereas the statutory Rules governing the method of appointment of teacher came to be published in the gazette on 31.1.78. It is, therefore, manifest that non-statutory Rule 16 was never intended to supplement the statutory Rules and, therefore, not applicable in the case of appointment of teacher in private government aided institutions. Yet, there is another reason why the non-statutory Rule 16 is not applicable in the case of appointment of teachers in the institution. The administrative instructions pertaining to grant-in-aid for secondary schools have been issued with the object of extending and improving institutions, and for that purpose a sum of money is annually allocated by the government for distribution as grant-in-aid to schools subject to observance to the conditions specified therein. The conditions embodies in Rule 16 of the grant-in-aid code provide for the conditions under which financial assistance would be made available to the Management of the institution by the government. If there is a breach of the conditions of the grants-in-aid, it is open to the government either to suspend or cancel the financial grant to the institution. But, such breach of conditions of the grant-in-aid code would not make the appointment of a teacher in the institutions invalid when the method of appointment of teachers in the institution is fully covered by the Act and the statutory rules. It is, however, true that for breach of administrative instructions which have no statutory force, a public servant or the person guilty of such a breach can be subjected to disciplinary action; but the same cannot be pressed into service for action which has the effect of modifying the statutory rules. We are, therefore, of the view, that breach of non- statutory Rule 16 would not render the appointments of appellant invalid.
12. So far the second question that arises for consideration is whether the appellants having been appointed on probation they would be deemed to have become regular teachers on expiry of probationary period, we are not inclined to go into that question in view of the fact that even though the appellants were probationers, their services could not be ceased to have effect either by non approval by the Head of the Department or by their remaining absent from their respective duties. There is no provision either in the Act or the Rules providing for automatic termination of services of a teacher on account of being absent without leave. If any teacher remains absent without any leave, it is open to the Management to terminate the services of such teachers only after complying with the provisions of the Act and the rules or principles of natural justice. In the present case, we do not find any provision either in the Act or Rules providing for automatic termination of service of a teacher in the event of a teacher remaining absent without leave. In the absence of such a provision in the Act or Rules, the alleged deemed termination of services of the appellants without giving any opportunity to the appellants was unlawful and deserves to be set aside."
d) T.N. Housing Board Vs. N. Balasubramanium and others (Supra):
"6. ................................................................................... It is not in dispute that the said eligibility criteria are mandatory in nature and the validity thereof had not been questioned. If a Draftsman is to be promoted to the post of Assistant Executive Engineer, he must complete 15 years of service in the said capacity, whereas the Junior Engineer may have to complete only 10 years in the said post. Once the eligibility criteria are considered to be a prerequisite for giving effect to the statutory Regulations, the purported executive instructions would not be applicable. Once it is held that relying on the basis of executive instructions in terms of Regulation 28(a), the Draftsman who have been getting higher salary are given preference over the diploma-holder Junior Engineers, the eligibility criteria contained in the statutory Regulations would become otiose; the logical corollary thereof would be that the executive instructions would prevail over the statutory Regulations. Such a consequence would lead to an absurdity and in that view of the matter, it must be held that the executive instructions cannot be given effect to."
e) Punjab Water Supply and Sewerage Board Vs. Ranjodh Singh and others (Supra):
"10. ............................................ Neither can the statutory bodies refuse to fulfil such constitutional duty, nor can the State issue any direction contrary to or inconsistent with the constitutional principles adumbrated under Articles 14 and 16 of the Constitution of India. The purported directions of the State were otherwise bad in law insofar as thereby the statutory rules were sought to be superseded. A circular letter furthermore is not a statutory instrument. It was not even issued by the State in exercise of the power under Article 162 of the Constitution of India. Even a scheme issued under Article 162 of the Constitution of India, would not prevail over statutory rules.
14. Once it is held that the terms and conditions of service including the recruitment of employees were to be governed either by the statutory rules or rules framed under the proviso to Article 309 of the Constitution of India, it must necessarily be held that any policy decision adopted by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be illegal and without jurisdiction.
16. ................................ To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.
19. ........................... It failed to notice that a policy decision cannot be adopted by means of a circular letter and, as noticed hereinbefore, even a policy decision adopted in terms of Article 162 of the Constitution of India in that behalf would be void. Any departmental letter or executive instruction cannot prevail over statutory rule and constitutional provisions. Any appointment, thus, made without following the procedure would be ultra vires.
20. This Court, recently in Indian Drugs & Pharmaceuticals Ltd. v. Workman opined that rules of recruitment cannot be relaxed and the courts/tribunals cannot direct regularisation of temporary appointees dehors the rules, nor can it direct continuation of service of a temporary employee (whether called a casual, ad hoc or daily - rate employee) or payment of regular salaries to them."
f) Mahadeo Bhau Khilare (MANE) and others Vs. State of Maharashtra and others (Supra):
"7. Indisputably, the State of Maharashtra has framed recruitment rules. Any scheme by way of an executive instruction in terms of Article 162 of the Constitution of India, if violative of such statutory rules would not be legally sustainable.
11. Appointments made without following the statutory rules by the State and that too without any remuneration whatsoever was itself unconstitutional."
g) Sandur Micro Circuits Limited Vs. Commissioner of Central Excise, Belgaum (Supra):
"6. The issue relating to effectiveness of a circular contrary to a notification statutorily issued has been examined by this Court in several cases. A circular cannot take away the effect of notifications statutorily issued. In fact in certain cases it has been held that the circular cannot whittle down the exemption notificatino and restrict the scope of the exemption notification or hit it down. In other words, it was held that by issuing a circular a new condition thereby restricting the scope of the exemption or restricting or whittling it down cannot be imposed. The principle is applicable to the instant cases also, though the controversy is of different nature."
h) Ajaya Kumar Das Vs. State of Orissa and others (Supra):
"14. Neither the Circular dated 18-6-1982 nor the subsequent Circular dated 18-6-1982 can override the statutory provision contained in Rule 74(b) of the Code if it results in reduction of pay of the employee on promotion. That the Orissa Service Code has been framed under Article 309 of the Constitution of India is not in dispute. It is well settled that the statutory rules framed under Article 309 of the Constitution can be amended only by a rule or notification duly made under Article 309 and not otherwise. Whatever be the efficacy of the executive orders or circulars or instructions, statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace the statutory rules. The Rules made under Article 309 of the Constitution cannot be tinkered by the administrative instructions or circulars.
15. Seen thus, upon promotion of the appellant to the rank of Assistant Engineer from SER, his pay in the timescale of Assistant Engineer has to be fixed as per statutory Rule 74(b), more particularly, in a situation such as the present one because by relying upon the Government Circulars dated 18-6-1982 or 19-3-1983 or 16-4-1971, the appellant's scale of pay gets reduced. The State Government has not challenged the applicability of Rule 74(b) of the Code in the matter. That being the position, the appellant's pay has to be fixed in accordance with Rule 74(b) of the Code and not otehrwise."
Judgments relied upon by learned Additional C.S.C.:
State of U.P. and others Vs. C/M Sri Sukhpal Intermediate College (Supra):
"11. In our view, the field of dispute in the present case is governed by the judgment of the Full Bench in Gopal Dubey (Supra). The judgment in Gopal Dubey clearly holds that the Act of 1971 operates in a field which is distinct from the Act of 1921. The mere fact that recognition has been granted to an institution or, for that matter, for conducting a new course or subject or for an additional section, would not give rise to a presumption of a financial sanction having been granted to the creation of a post. A financial liability cannot be foisted on the State to reimburse the salary payable to the employee or the teacher on the basis of such a presumption. For the purpose of creating a new post of a teacher or other employee, the management has to obtain the prior approval of the Director as required under Section 9 of the Act 1971. Without the prior approval of the Director, a new post cannot be sanctioned or created. Section 9 is mandatory. This principle in Gopal Dubey's case follows specifically the judgment of the Supreme Court in Gajadhar Prasad Verma's case which was rendered while interpreting the provisions of Section 9 of the Act of 1971. The High Court cannot issue a direction contrary to the mandate of Section 9. Orders under Article 226 must conform to law and cannot be contrary to the mandate of law. No mandamus can issue-interim or final-for the payment of salary by the State in the absence of the prior approval of the Director."
(19) On perusal of afore-quoted judgments, it is evident that settled position of law is that no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law.
(20) Here, in the present case, On 22.04.1999, an order was passed by this Court in Writ Petition No.17179 of 1999, whereby direction was issued to the respondents to decide the representation of the Committee of Management taking into consideration the norms fixed by the Government as well as the recommendations of Director Higher Education and in pursuance thereof, a High Power Committee decided the representation of Committee of Management on 31.08.1999 and sanctioned 64 posts of non teaching staffs in D.A.V. College, Kanpur and D.B.S. College, Kanpur by imposing condition that the State shall not bear any liabilities with regard to payment of salary and the management would have to bear the burden.
(21) In pursuance thereof, name of petitioners were called from employment exchange / advertisement was issued in the news papers and petitioners applied in pursuance thereof and on the recommendation of Selection Committee, the petitioners were appointed by the Committee of Management on their respective posts when no action was taken by respondent No.3 on the communication made by Selection Committee and since then, the petitioners are discharging duty on their respective posts to the satisfaction of concerned authorities, however, they have not been paid salary in view of condition imposed in the order dated 31.08.1999. For the payment of salary to the petitioners, the Committee of Management has made several representations, but no heed has been paid to the same.
(22) Meaning thereby, the petitioners were selected by the Selection Committee having fulfilled requisite eligibility criteria by following procedure prescribed in the Act of 1973. When the recommendation made by the Selection Committee was not approved by respondent No.3 within stipulated time, they joined duty on their respective posts, however, they have not been paid even a single penny so far.
(23) It is also relevant that one Purushottam Singh, who has been appointed on the post of Cataloguer in DAV College, Kanpur vide order dated 22.12.1999 is being paid salary from the State Government, as there has been no embargo levied while sanctioning his post, therefore, discrimination has been caused between the petitioners while sanctioning the post by imposing rider to not pay salary from the State Government, which is in breach of provisions of Articles 14 & 16 of the Constitution of India.
(24) Section 60-E of U.P. Universities Act, 1973 reads as under:
"60E- Liability in respect of salary - (1) the state government shall be liable for payment of salaries of teachers and employees of every college due in respect of any period after March 31, 1975.
(2) the state government may recover any amount in respect of which any liabilities incurred by it under sub-section (1) by attachment of the income from the property belonging to or vested in the college as if that amount were in arrears of land revenue due from such college.
(3) nothing in this section shall be deemed to derogate from the liability of the college for any such dues to the teacher or employee."
(25) On its perusal, it is evident that the State Government is liable for payment of salaries of teachers and other employees of colleges due in respect of any period after 31.03.1975.
(26) In the case of Dr. Rajinder Singh (Supra), it has been held that the settled position of law is that no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. Likewise, in the case of Commissioner of Central Excise, Bolpur (Supra), it has been observed that so far as the clarifications/circulars issued by the Central Government and of the State Government are concerned, they represent merely their understanding of the statutory provisions and they are not binding upon the Court. It is for the Court to declare what the particular provision of statute says and it is not for the executive and even if it is looked from another angle, a circular, which is contrary to the statutory provisions, has really no existence in law. Similar view has been adopted in the case of Punjab Water Supply and Sewerage Board (Supra), by saying that neither can the statutory bodies refuse to fulfil such constitutional duty, nor can the State issue any direction contrary to or inconsistent with the constitutional principles adumbrated under Articles 14 and 16 of the Constitution of India. The purported directions of the State were otherwise bad in law insofar as thereby the statutory rules were sought to be superseded. A circular letter furthermore is not a statutory instrument. It was not even issued by the State in exercise of the power under Article 162 of the Constitution of India. Even a scheme issued under Article 162 of the Constitution of India, would not prevail over statutory rules. In the case of Mahadeo Bhau Khilare (Supra), the Court has observed that any scheme by way of an executive instruction in terms of Article 162 of the Constitution of India, if violative of such statutory rules, would not be legally sustainable. Similarly, in the case of Sandur Micro Circuits Limited (Supra), it has been held that a circular cannot take away the effect of notifications statutorily issued.
(27) On overall consideration of facts and circumstances of the case and law reports cited by learned counsel for the parties, the arguments advanced by learned Additional C.S.C. are not found acceptable in view of the fact that the sanction granted with rider has adversely affected the employees of the colleges. Once the posts have been sanctioned, the rider imposed under the Government Order dated 31.08.1999 and 22.03.2001 are erroneous in nature and contrary to the statutory provisions of law provided under Section 60-E of U.P. State Universities Act, 1973 and the liability for payment of salary lies upon the State Government.
(28) In view of reasons recorded above, the condition incorporated in Government Order dated 31.08.1999 and the consequent order dated 22.03.2001, by which the rider has been imposed in payment of salary to teachers and other employees against 64 sanctioned posts in D.A.V. College, Kanpur and D.B.S. College, Kanpur are not found in consonance with Article 162 of Constitution of India, therefore, are liable to be quashed.
(29) The writ petitions succeed and are allowed.
(30) The condition incorporated in Government Order dated 31.08.1999 so far as it imposes the rider in payment of salary to teachers and other employees against 64 sanctioned posts in D.A.V. College, Kanpur and D.B.S. College, Kanpur and the consequent order dated 22.03.2001, are hereby quashed.
(31) The respondents are directed to make payment of regular monthly salary month by month to the petitioners in as much as arrears of salary from the date of their joining in the respective institutions. The aforesaid exercise shall be completed within a period of three months from the date of production of a certified copy of this order.
Order Date :- 29.9.2022 Adarsh K Singh