Allahabad High Court
Harendra Pratap Singh And 27 Ors. vs Union Of India And 3 Ors. on 14 May, 2018
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 58 Case :- WRIT - A No. - 19384 of 2017 Petitioner :- Harendra Pratap Singh And 27 Ors. Respondent :- Union Of India And 3 Ors. Counsel for Petitioner :- Shantanu Khare,Ashok Khare Counsel for Respondent :- A.S.G.I.,Gautam Baghel,Neeraj Tripathi Hon'ble Ashwani Kumar Mishra,J.
1. Petitioners, who are 28 in number, have prayed for following reliefs in this writ petition:-
"(i) a writ, order or direction of a suitable nature commanding the respondents to permit the petitioners to function as non teaching staff of Institute of Correspondence & Continuing Studies, University of Allahabad, Allahabad and to pay the petitioners their regular monthly salary, regularly, every month including the arrears of their salary from Nov.'14 till date within a period to be specified by this Hon'ble Court; or alternatively in case the Institute is treated as having been closed down to absorb the petitioners against the alternative post in the University itself with all consequential benefits including payment of arrears of salary of the petitioners within a period to be specified by this Hon'ble Court.
(ii) a writ, order or direction in the nature of certiorari quashing the order dated 06.09.2016 issued by the Registrar, University of Allahabad, Allahabad (Annexure 16 to the writ petition."
2. University Grants Commission, New Delhi, on 22.1.1976 accorded approval to the proposal of the University of Allahabad for introducing correspondence courses in Bachelor of Arts and Commerce streams in the University of Allahabad. The Academic Council in its meeting held on 22nd July, 1976 thereafter proposed introduction of correspondence courses and also proposed a set of ordinances for the purpose. The Executive Council on 29th July, 1976 accordingly took a decision to approve the establishment of Institute of Correspondence Course and Continuing Education (hereinafter referred to as 'ICC&CE'). The ordinances proposed were also approved and incorporated as Chapters XXXIV and XXXVII of the University Calender for the year 1968. Clause 8(b) of the Ordinances provided as under:-
"8.(b) The staff of Correspondence Courses will be borne on the strength of the respective University departments."
ICC&CE, accordingly, came into being as a distinct department, which was integral part of the University of Allahabad.
3. The Executive Council on 13th July, 1985 also constituted an Advisory Committee for the Overall Administrative Supervision of the ICC&CE with Vice Chancellor as its Chairman. The Registrar of the University sought approval of the State for creation of various posts in the ICC&CE. The approval, as prayed for, was granted by the State under Section 44 of the U.P. State Universities Act, 1973 with the condition that no financial grant shall be provided by the State to the ICC&CE as it was to function as a self-finance institution. It appears that ICC&CE proceeded to appoint petitioners on daily wage basis on different dates in the year 1985 and onwards. Such appointment was subsequently made for a fix period of three months and was extended from time to time. Orders subsequently were passed appointing the petitioners in specified pay scale on temporary basis. Benefit of provident fund, insurance, gratuity etc. were also extended to employees of ICC&CE i.e. petitioners, vide different orders passed by the University authorities.
4. On 27.3.1999, the Executive Council of the University of Allahabad proposed merger of ICC&CE with Purushottam Das Tandon Open University. This proposal, however, was not finalized as requisite approval was not granted by the State.
5. The ICC&CE sought approval from the State Government for regularizing services of 70 Class-III and 22 Class-IV employees of the ICC&CE like employees of other departments of the University. The State Government, however, observed that as the University of Allahabad is likely to be granted Central status, as such no policy decision be taken in the matter and status quo, in that regard, be maintained.
6. By a Parliamentary Legislation, the University of Allahabad Act, 2005 i.e. Act No.26 of 2005 came to be passed, which received assent of the President of India on 23rd June, 2005. A notification dated 11th July, 2015 was then issued by the concerned department providing that Act No.26 of 2005 was to come into force w.e.f. 14th July, 2005. Section 3(y) of the Act of 2005 defined 'University Institute' to mean an Institute established and maintained by the University. By virtue of Section 5, on and from the appointed date i.e. 14.7.2005, every person employed by the University immediately before the 14th July, 2005 was to continue to hold office in the service of the University by the same tenure, at the same remuneration and upon same terms and conditions and privileges, unless and until such employment is terminated or until such tenure, remuneration and terms and conditions are duly altered by the Statutes. Section 5(d) of the Act of 2005 is reproduced:-
"5. On and from the appointed day,-
(d) every person employed by the University of Allahabad immediately before the appointed day shall hold his office or service in the University by the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges as to pension, leave, gratuity, provident fund and other matters as he would have held the same if this Act had not been passed, and shall continue to do so unless and until his employment is terminated or until such tenure, remuneration and terms and conditions are duly altered by the Statutes:
Provided that if the alteration so made is not acceptable to such employee, his employment may be terminated by the University in accordance with the term of the contract with the employee or, if no provision is made therein in this behalf, on payment to him by the University of compensation equivalent to three months' remuneration in case of permanent employees and one month's remuneration in the case of other employees:
Provided further that every person employed before the appointed day, pending the execution of a contract under Section 34, shall be deemed to have been appointed in accordance with the provisions of a contract consistent with the provisions of this Act and the Statutes:
Provided also that any reference, by whatever form of words, to the Vice-Chancellor and Pro-Vice-Chancellor of the University of Allahabad in any law for the time being in force, or in any instrument or other document, shall be construed as a reference respectively to the Vice-Chancellor and the Pro-Vice-Chancellor of the University;"
7. By virtue of the provisions of the Act of 2005, the ordinances made under the State Universities Act were to continue, in so far as it was not in consistent with the provisions of the Act of 2005 and the Statutes.
8. Section 28 of the Act of 2005 also provided for framing of statutes of the Central University. The first statute was set out in the schedule to the Act itself. Statute 30 (1) and (2) provided for the institutes of the University and are reproduced hereinafter:-
"30.(1) The Institutes of the University immediately before the commencement of the Act, namely:-
(i) The Institute of Inter-Disciplinary Studies;
(ii) The Institute of Professional Studies; and
(iii) The National Centre of Experimental Mineralogy and Petrology, shall continue as University Institutes and the Centre of Behavioural and Cognitive Sciences shall continue as an independent Centre of the University, and all matters relating thereto shall be provided for by the Ordinances.
(2) The Institute of Correspondence Courses and Continuing Education shall continue as a temporary self-financing University Institute, and all matters relating thereto shall be provided for by the Ordinances."
9. The Ordinances of the University of Allahabad after it became a Central University got notified on 9.2.2008 by the Vice Chancellor of the University, under Section 29(2) of the Act of 2005, after obtaining previous approval of the Central Government (hereinafter referred to as the 'Ordinances of 2008'). Part-V of the Ordinances relates to institutions maintained by the University. Chapter XXXII falling in Chapter-V contains provisions relating to the Institute of Correspondence Courses and Continuing Education. By virtue of Ordinance-1, the institute has been authorized to organize instructions for such courses of study, leading to degrees, diplomas, certificates of proficiency or special certificates, as may appropriately be offered in the open or distance learning mode. By virtue of Ordinance-1 (b) the institute is to have a Director, an Advisory Board and an Academic Committee. Ordinance-1(d) provides for funds of the institute in following words:-
"1.(d) The funds of the Institute shall consist of income from assets, endowments and investments, receipts from fees and other dues charged to the students and from publications, facilities, consultancy and other services, revenues from such other activities as are consistent with the provisions of the Ordinances and Regulations, and grants or contributions, for various purposes, received, with the concurrence of the Executive Council, from other sources:
Provided that no such grant or contribution shall be utilized, except in accordance with the terms and conditions governing the same."
10. Ordinance 2(a) and (b) is relevant for the present purposes and are therefore reproduced hereinafter:-
"2.(a) The institute shall impart instruction, in the open or distance learning mode, for such courses of study, and such subjects thereunder, as may be approved by the Academic Council.
(b) The courses of study, and subjects thereunder, for which instruction was being offered by the institute, immediately prior to the commencement of this Ordinance shall be deemed to be the approved courses of study and subjects of the institute (hereinafter in this Ordinance referred to as "the approved courses of study" and "the approved subjects", respectively)."
11. In view of the clear stipulation in Ordinance, currently enforced, the institute is entitled to impart instruction as approved by the Academic Council and for which instruction was being imparted prior to introduction of the Ordinances of 2008. The courses of study and subject thereunder for which instruction was being offered by the institute immediately prior to the commencement of the Ordinances of 2008 would be the approved courses of study. Procedure was also provided for adding further subjects/new subject.
12. By virtue of Ordinance-3(a), an Advisory Board has been constituted consisting of Pro Vice Chancellor, Dean of Faculties with the Director of institute being its Secretary. Other members were also specified and the powers of the Advisory Board have also been specified. The Director, who happens to be a teacher not below the status of Professor of the University of Allahabad, is to be the Chief Executive Functionary of the institute. Various functions of the Director have been specified. The Advisory Board also has power to engage staff of the institute temporarily, or on contractual basis, as may be approved by the Executive Council. The Registrar with the concurrence of Vice Chancellor is also conferred power to post regular employees of the University to the ICC&CE. Restrictions were also placed upon engagement of new staff by virtue of Clause 5(g) of the Ordinances.
13. At this juncture, it would be relevant to note that Executive Council in a meeting held on 8.12.2011 has passed a resolution for including the ICC&CE as a permanent institute of the University under Statute 30(1). In a meeting held of ICC&CE on 24.1.2012, a decision was taken to integrate the institute as a permanent institute of the University of Allahabad. The Registrar of the University based upon the decision taken by the Executive Council forwarded communication to the Government of India seeking consent of the Visitor of the University to amend the first statute by including the ICC&CE also as one of the institutes of the University in Statute 30(1) of the first statutes. A list of employees was also annexed and forwarded.
14. The communication of the University seeking assent of the Visitor to amend the statute has remained pending although a period of over 06 years has passed. Various proceedings have been instituted before this Court for a request to be made to the Visitor to accord his consideration in the matter.
15. In a recent Division Bench judgment of this Court in Rekha Singh Vs. Union of India and others, passed in Writ Petition No.31696 of 2016, decided on 13.4.2018, the issue has been examined at length and a direction has been issued to the Ministry of Human Resource Development to place the matter before the Visitor for his consideration. Relevant portion of the observation of the Division Bench reads as under:-
"In view of the aforesaid facts and circumstances, we are of the opinion that in exercise of powers under Section 28(3) of the Act, 2005 the Visitor has no authority of law to deny or refuse grant of assent to the proposed amendment to the Statues as resolved by the Executive Council and that the power of withholding the assent is not unfettered so as to permit him to keep it pending or withheld for years together as withholding of the assent is permissible only for a limited period which may be fair and reasonable in the given facts and circumstances of the case.
Accordingly, the Ministry of Human Resource Development, Department of Higher Education, Shastri Bhawan, New Delhi is directed to place the matter once again before the Visitor and to have his final opinion for the grant of assent or for remittance of the matter to the Executive Council of the University for reconsideration, if necessary.
Since the ICC&CE is a Self-Financing Institute of the university, we do not certainly like to burden the public exchequer or the Government with the liability to pay salary and the emoluments admissible to the petitioner as Assistant Director of the ICC&CE but are of the clear opinion that as the petitioner had continuously worked there from November, 2014 till her retirement in 2017, there is no justification not to pay her salary/remuneration admissible to her otherwise it would amount to Begar which is not only prohibited under Article 23 of the Constitution of India but is also punishable.
Accordingly, we direct the University to make immediate arrangement for payment of salary and emoluments to the petitioner for the period November, 2014 till 2017 and to make the entire payment within a period of two months of the receipt of the copy of this order failing which criminal action for punishing the erring officers shall be taken in accordance with law.
The Writ Petition is allowed as above."
16. It appears that while assent of the Visitor for amending the statute of the University to make ICC&CE a permanent institute remained pending, an order came to be passed by the Registrar of the University on 6th September, 2016, which is challenged in this petition. The order reads as under:-
"NOTIFICATION This is for information to all concerned that the ICC&CE is not part of the University of Allahabad; if, anybody is taking new/fresh admission during the current Academic Session 2016-17 there, he/she shall be taking at his/her own risk.
If, anybody is found acting as tout and promising admissions or jobs in the University of Allahabad and facilitating corruption he/she shall be prosecuted under criminal act. The information about such persons should be provided to the following numbers.
1. Vice-Chancellor Office - 0532-2461089/2461083
2. Office on Special Duty - 9918295096/9838018145 Registrar"
17. The decision of the Registrar is challenged in the present petition, in so far as it notifies that ICC&CE is not a part of the University of Allahabad, and if anybody is taking new/fresh admission during the academic sessions 2016-2017, it shall be at his own risk.
18. Learned Senior Counsel for the petitioner contends that even if assent is not granted to the resolution of the Executive Council to amend the statute by including ICC&CE as a permanent institute of the University under Statute 30(1) of the First Statutes of University of Allahabad, it shall continue to remain a temporary Self-Financing Institute of the University of Allahabad, to be governed by the provisions of the Statutes and the Ordinances. Submission is that neither Statute 30(2) has been amended nor the Ordinances contained in Chapter XXXII have been amended, and therefore, the decision of the Registrar is wholly without jurisdiction. It is also stated that even the Academic Council has not taken any decision to discontinue imparting of instructions by ICC&CE nor any such decision has been approved by the Executive Council, and the unilateral decision taken at the level of the Registrar is not only without jurisdiction but is also contrary to express provisions contained in the Statutes and the Ordinances. It is also stated that petitioners are entitled to continue on the same terms as they were continuing prior to the University becoming a Central University, by virtue of Section 5(d) of the Act of 2005, and the stoppage of their salary is wholly without jurisdiction.
19. A counter affidavit has been filed by the University in which various orders passed by different authorities of the University from time to time under the U.P. State Universities Act, 1973 are not disputed. In para 25 of the counter affidavit, it is stated that the University has received a communication from the Ministry of Human Resource Development, New Delhi dated 19th April, 2016, as per which the Visitor has been pleased to withhold assent of the proposed amendment in the statutes relating to ICC&CE. It is also stated in para 26 that the ICC&CE is a temporary Self-Financing University Institute, and it is not possible for the University to maintain it for want of funds, particularly as amendment to the statute has been withheld by the Visitor. According to the respondents, the reason for issuance of notification dated 6.9.2016 of Registrar is merely to inform the public at large that if anybody is taking fresh admission in the ICC&CE, he/she shall be doing it at his/her own cost. It is also stated that only contractual appointments could have been made in the ICC&CE and the regularization orders passed in favour of various persons have been set aside by the University against which writ petitions filed are pending.
20. Learned counsel for the University, during the course of hearing of the writ petition, has invited attention of the Court to a letter of University Grants Commission, as per which the amount diverted by University to ICC&CE from its non-plan funds for payment of salary has been withheld from budgetary allocation made to the University. Relevant portion of the letter dated 21st October, 2013 is reproduced:-
"Subject:Approval of Budget Estimates for the year 2013-2014 (Non-Plan)
8. Loss: Amount withheld on account of irregularities done by the University i.e. divertion of Non-Plan funds amounting to Rs.635.15 lakh for payment of salary to the employee of ICC&CE.
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635.15 Another letter of the UGC dated 29th March, 2013 has also been placed before the Court, which is reproduced hereinafter:-
"Registrar, University of Allahabad Allahabad-211002 Sub: Revised Budget Estimates for 2012-2013 under Non-Plan of Central Universities regarding transfer of Non-Plan to ICC&CE.
Sir, This is in reference to Revised Budget Estimates discussion meeting for 2012-2013 held on 26.02.2013 to 1.3.2013 in the UGC office, while reviewing the Non-Plan Revised Estimates it has come to the notice of the UGC that University of Allahabad has transferred non-plan fund of Rs.484.85 lakh to ICC&CE as loan for payment of Salary to employees of ICC&CE. Therefore, it is requested that University may recoup the amount under Non-Plan which was paid by the University from the Non-Plan Grant to ICC&CE as loan for payment of Salary to employees of ICC&CE under the intimation to UCG.
Yours faithfully, (Ritu Oberoi) Under Secretary"
21. It may be noticed that though these letters have been placed before the Court during the course of hearing but they have neither been annexed alongwith the counter affidavit nor any pleading is made in that regard. Learned counsel for the University has merely tried to convey that it is due to the letters of the UGC disapproving grant of funds to the ICC&CE, that the Registrar has passed the order under challenge for withholding the payment of salary to petitioners and discontinuing fresh instructions in different courses from the Academic Sessions 2016-2017.
22. I have heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Sunil Kumar Srivastava for the petitioners, and Sri Umesh Narain Sharma, learned Senior Counsel assisted by Sri Chandan Sharma for the University and have perused the materials brought on record.
23. The Institute of Correspondence Course and Continuing Education was set up as an integral part of the University of Allahabad with approval of the University Grants Commission. Correspondence Courses in the Faculty of Arts and Faculty of Commerce were specifically approved by the Academic Council and the Executive Council, whereafter it was included in the Ordinances of the University. Staff of Correspondence Courses was to be borne on the strength of their respective University Department. It continued to function with due approval of the competent bodies/authorities. Appointments were also made in ICC&CE of Class-III and Class-IV employees with the knowledge of the concerned authorities and with their specific approval. It appears that a decision relating to their regularization etc. was deferred as there was a move to alter the status of University of Allahabad to a Central University.
24. With advent of the University of Allahabad Act, 2005, also the status of ICC&CE remained intact. By virtue of Statute 30(2), ICC&CE continued as a temporary Self-Financing University Institute and all matters relating thereto were to be regulated by the Ordinances. The new Ordinances have also been notified on 9.2.2008. ICC&CE is specifically acknowledged as an institution maintained by the University of Allahabad. By virtue of Statute 30(3), the manner of establishing University Institute and the manner of its maintenance by the University and all matters ancillary to it are to be prescribed by the Ordinances. The Ordinances clearly provide that ICC&CE is competent to organize instruction for such courses of study, as may appropriately be offered in the open and distance learning mode. Ordinance 1(a) of the Ordinance XXXII is extracted hereinafter:-
"1.(a) The Institute of Correspondence Courses and Continuing Education (hereafter this Ordinance referred to as "the Institute") shall organise instruction for such courses of study, leading to degrees, Diplomas, Certificates of Proficiency or special Certificates, as may appropriately be offered in the open or distance learning mode."
Ordinance 2(a) & 2(b) of the Ordinance XXXII are also relevant, and are reproduced:-
"2.(a) The Institute shall impart instruction, in the open or distance learning mode, for such course of study, and such subjects thereunder, as may be approved by the Academic Council.
(b) The courses of study, and subjects thereunder, for which instruction was being offered by the Institute, immediately prior to the commencement of this Ordinance, shall be deemed to be the approved courses of study and subjects of the Institute thereafter in this Ordinance referred to as "the approved courses of study" and "the approved subjects", respectively."
25. By virtue of the aforesaid provisions, courses of study and subjects thereunder for which instruction was being provided by ICC&CE immediately prior to commencement of the new Ordinances notified on 9.2.2008, shall be deemed to be the approved courses of study and subjects of institute. Ordinance 32(2)(e) also provides that the Board of Faculty may suspend any of the approved courses and it shall come into effect only upon approval by the Academic Council. Ordinance 32(2)(e) is reproduced:-
"2(e) In the case of such of the approved courses of study and subjects as are assigned to a Faculty, the Board of the Faculty may, suo motu or on a proposal submitted by the Advisory Board (in consultation with the Academic Committee), recommend-
(i) the suspension of any approved course of study or subject for a specified period; or
(ii) changes in the schedule of commencement and closure of the academic year for any approved course of study, and such recommendation shall come into effect upon approval by the Academic Council:
Provided that the Academic Council may, where it so deems appropriate, suo motu issue a direction to the Institute to the effect referred to in serial number (i) or (ii)."
26. From the statutory scheme, noticed above, it is observed that courses of study and subject thereunder in which instructions were being offered by the ICC&CE immediately prior to commencement of the new Ordinances of 2008 shall be deemed to be the approved courses of study, which could be suspended in the manner specified, and only thereupon it shall come into effect. Specific approval of Academic Council is mandatory for the purpose. In the facts of the present case, the Board of Faculty either suo motu or on a proposal submitted by Advisory Board is not shown to have recommended for suspension of approved course of study nor it has been approved by the Academic Council. The authority competent having not taken any decision to suspend the approved courses of study or subjects for specified period, it would not be permissible for the Registrar of the University, unilaterally, to suspend the instruction offered by the ICC&CE in the courses of study and subjects thereunder. Law is well settled that once the statute provides a particular method of doing a thing, all other modes of doing it would be prohibited in law (See:- Taylor Vs. Taylor, (1876) 1 Ch D 426, as followed in Nazir Ahmed Vs. King Emperor, AIR 1936 PC 253; State of Uttar Pradesh Vs. Singhara Singh, AIR 1964 SC 358; and Prabha Shankar Dubey Vs. State of Madhya Pradesh, AIR 2004 SC 486).
27. In the counter affidavit filed by the University, there is no explanation brought on record as to how the instructions imparted in the ICC&CE have suddenly been discontinued from the Academic Sessions 2016-2017. There is no deliberation by the competent authority on the issue nor any reasoned decision appears to have been taken at the competent level. The decision of Registrar to suspend instructions from the Academic Sessions 2016-2017 is an abrupt move, which is not backed by due deliberation required by the competent body nor is it backed by a decision taken by the competent authority. The Registrar's notification under challenge, therefore, is found to be without jurisdiction and is otherwise wholly unreasonable and arbitrary, and is accordingly liable to be quashed.
28. The decision to stop petitioners' engagement in ICC&CE as well as denial of salary/remuneration to Class-III and Class-IV employees appears to be equally abrupt, unjust and arbitrary. Admittedly petitioners were engaged prior to the University becoming a Central University. By virtue of Section 5(d), engagement of petitioners upon the terms existing then have clearly been protected by operation of law. It was not possible for the University to have suddenly interfered with working of the petitioners without passing any valid order, particularly when they have been working for the last several decades.
29. The University, as a matter of fact, has not proposed discontinuance of the ICC&CE or its academic activities from the year 2016-2017. As a matter of fact, a decision has already been taken by the Academic Council and the Executive Council to elevate its status as a permanent institute by including it in Statute 30(1) of the Statutes. The mere fact that assent of the Visitor has not been extended for doing so would not mean that all academic activities be stopped in the ICC&CE, and the existing staff be removed or their salaries be withheld. Even the decision of UGC, which is relied upon by the University as being the reason for discontinuing the activities of ICC&CE does not appear to have been appropriately analyzed and examined by the University. The mere fact that allocation of funds from a particular budgetary head has been disapproved by the UGC would not mean that UGC has disapproved functioning of ICC&CE itself. Specific approval of UGC with regard to running of ICC&CE as well as its continuance under the Statutes and Ordinances remains intact. The Registrar, therefore, was not justified in discontinuing with the activities of ICC&CE merely due to the communications received from UGC in the matter relating to allocation of funds.
30. The autonomy, which is expected to be conferred upon a self-financed institute, neither seems to exist for the ICC&CE nor the financial support which otherwise is available to an University Institute financed by it exists for ICC&CE. It appears from the record that University treats ICC&CE as a self-financing institution when it comes to providing financial aid, as is available to other departments and treats ICC&CE as its department when issues of autonomy is raised. This aspect needs to be deliberated upon by the competent forum, so as to ensure that the Act, Statutes and Ordinances are complied with.
31. Having allowed petitioners to work for nearly 30 years, it would not be just, legal and valid to allow the respondents to suddenly discontinue engagement of petitioners so as to deny them salary, as has been done herein.
32. For the reasons aforesaid, this writ petition succeeds and is allowed. Order passed by the Registrar, contained in notification dated 6.9.2016, in so far as it directs discontinuance of all academic activities from the Academic Sessions 2016-2017, stands quashed. Unless a decision is taken by the Competent Authority, in accordance with law, the position existing with regard to ICC&CE shall continue as it was prior to 9.2.2008 i.e. when the new ordinances have come into being. The services of petitioners would continue in the employment of ICC&CE upon the status as it stood prior to 14th July, 2005, by virtue of Section 5(d) of the Act of 2005, and they shall be entitled to payment of salary, as they were receiving it month to month, and shall also be entitled to arrears of salary.
33. In the facts and circumstances, there shall be no order as to costs.
Order Date :- 14.5.2018 Anil (Ashwani Kumar Mishra, J.)