Uttarakhand High Court
Harish Singh Satyapal And Others vs Vice Chancellor Govind Ballabh Pant ... on 15 September, 2017
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 203 of 2014
Kailash Chandra Paneru ............ Appellant
Versus
Vice Chancellor of Govind Ballabh Pant Agriculture
and Technology University Pant Nagar and others
............. Respondents
With
Special Appeal No. 193 of 2014
Harish Singh Satyapal and others ............ Appellants
Versus
Vice Chancellor, Govind Ballabh Pant University of
Agriculture & Technology, Pant Nagar and others
............. Respondents
With
Special Appeal No. 227 of 2014
Sri Ganesh Chandra Tamta and another ............ Appellants
Versus
Vice Chancellor, Govind Ballabh Pant University of
Agriculture & Technology, Pant Nagar and others
............. Respondents
Mr. Avtar Singh Rawat, Senior Advocate assisted by Mr. Alok Mahra, Advocate for the
appellants in SPA No. 193 of 2014.
Mr. Ghanshyam Joshi, Advocate for the appellant in SPA No. 203 of 2014.
Mr. Ganesh Kandpal, Advocate for the writ petitioner in Writ Petition (S/S) No. 49 of
2011.
Dr. Udyog Shukla, Advocate for the appellants in SPA No. 227 of 2014.
Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Paresh Tripathi, Advocate for the
G.B. Pant Nagar University.
Mr. Aditya Singh, Advocate for the party respondents in SPA No. 227 of 2014 and SPA
No. 193 of 2014.
Dated: 15th September, 2017
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
K.M. JOSEPH, C.J. (Oral) Since common issues are raised in these appeals, we dispose of the same by this common judgment.
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2. Special Appeal No. 203 of 2014 is filed by the party respondent in Writ Petition (S/S) No. 49 of 2011 challenging the judgment rendered by the learned Single Judge. In fact, the learned Single Judge had clubbed together Writ Petition (S/S) No. 49 of 2011, Writ Petition (S/S) No. 949 of 2013 and Writ Petition (S/S) No. 1274 of 2013 and pronounced a common judgment. Special Appeal No. 227 of 2014, as also, Special Appeal No. 193 of 2014 are filed by the writ petitioners in Writ Petition (S/S) No. 949 of 2013. There are two appellants in Special Appeal No. 227 of 2014, who are petitioner nos. 8 and 4 respectively in Writ Petition (S/S) No. 949 of 2013. The rest of the writ petitioners in Writ Petition (S/S) No. 949 of 2013 are the appellants in Special Appeal No. 193 of 2014. As against Writ Petition (S/S) No. 1274 of 2013, there is no appeal. Writ Petition (S/S) No. 49 of 2011 was filed by the Pantnagar Vishwa Vidhlaya Accounts Forum. The reliefs sought therein are as follows:
"1- a writ, order or direction in the nature of mandamus directing the respondent do not merge the post of office superintendent cum accountant of Krishi Vigyan Kendra in the account cadre of the G.B. Pant University.
2- a writ, order or direction in the nature of mandamus directing the respondent not to make promotion to the those who were merged from the Krishi Vigyan Kendra to the account cadre in pursuant to the impugned seniority list of the accountant contained as Annexure no. 13 of the writ petition.
3- a writ, order or direction the nature of certiorari for quashing the impugned order dated 28-4-2003 contained as Annexure no. 6 to this writ petition 3 and the impugned resolution no. 18 passed by the board of the management of the G.B. Pant University on 10.4.2003 in its 188th meeting."
3. Writ Petition (S/S) No. 949 of 2011 was filed by the persons, who were working in the Krishi Vigyan Kendra. The reliefs sought therein are as follows:
"i. To issue a writ in the nature of certiorari by quashing the impugned order dated 22.05.2013 (Annexure-1) passed by Comptroller, Govind Bhallabh Pant University of Agriculture & Technology Pantnagar, District-Udham Singh Nagar.
ii. To issue a writ or direction in the nature of mandamus commanding the respondents to make combined seniority list for the post of Accountants of account cadre of the university and Accountants in Krishi Vigayan Kendra and further the respondents may be directed to include the name of the petitioners in the combined seniority list at appropriate place for consideration the candidature of the petitioners for the promotion to the post of Assistant Accountant Officer in account cadre in Govind Bhallabh Pant University of Agriculture & Technology Pantnagar, District- Udham Singh Nagar."
4. We have already referred to the reliefs sought in these cases. The learned Single Judge has dismissed the Writ Petition (S/S) No. 1274 of 2013 and Writ Petition (S/S) No. 949 of 2013. In doing so, it was, inter alia, held as follows:
"10. In WPSS No. 949 of 2013, the petitioners were appointed as Accountants in the "KVK" of the University in the year 2006 and now claim that since the cadre of Accountants stood merged with that of Accountant with the University on 28.04.2003, they are actually the employees of the University and from the initial date of the appointment they seek all 4 benefits from the University, including their inter se seniority with the existing staff of the University.
11. In WPSS No. 1274 of 2013, the petitioner - Mukesh Chand is a temporary employee, who is represented by Mr. Anurag Bisaria, Advocate, was appointed as an Accountant in the Project (KVK), but not in the project in University but elsewhere now claims parity with the employees of the University. He has admittedly not been regularized as yet.
12. From the MOU between the KVK and the University, the terms of the appointment of the petitioners (in WPSS Nos. 949 of 2013 and 1274 of 2013), it is clear that they were appointed not for the University but for a project by ICAR which is known as KVK. Therefore, the merger order passed by the Board of Management of the University is patently illegal for the reasons that employees of KVK were never the employees of the University. They continued to be employees of a project which was fully funded and financed by ICAR. Moreover, under the specific condition of the MOU, the work they were supposed to do as employees of ICAR which was for research could not be diverted the work in the University. Finally the decision to absorb these employees i.e. K.C. Paneru and Subhash Chandra by the University is, therefore, unilateral is again patently illegal as no prior permission or sanction of ICAR was taken in the matter. However, the University on a re-thinking now (in WPSS No. 949 of 2013) while filing their counter affidavit has itself expressed apprehensions and doubts over the merger dated 28.04.2003 not only this it has also annexed the letter of ICAR in which ICAR has expressed its disapproval that they are the employees of any other University. Letter of the Zonal Project Director (Zone-4), Sri A.K. Singh addressed to the Vice Chancellor of the University reads as under:-
"The Vice-Chancellor 5 GBPUAT Pantnagar - 263145 Sub:- Filling up of vacant positions in KVKs Sir, You may be kindly aware that a large number of positions in KVKs of GBPUAT, Pantnagar are vacant since long hampering effective functioning of the KVKs. Recently on 13th & 14th October, 2012, the review of 11 KVKs of the University was done and it was found that a total of 85 positions are vacant out of 176 positions sanctioned for 11 KVKs of the University. KVK scheme is 100% financed by Indian Council of Agricultural Research (ICAR), Dept. of Agricultural Research & Education, Government of India and hence, there should not be any reservation on the part of the University to fill the vacant positions and make the KVKs fully functional and implement the mandate of serving farmers by way of assessment, refinement and demonstration of technologies/products.
It has also been found that number of KVK staff have been attached by the University for the purposes other than the KVKs which is against the spirit of the MOU signed between the University and the ICAR.
Therefore, it is kindly requested that such discrepancies may be addressed and those who are not actually working in KVKs and are attached some where, their salary should not be drawn from the grant of KVKs provided by the ICAR.
Yours faithfully, (A.K. Singh) Zonal Project Director Copy to Dr. K.D. Kotate, DDG (AE), ICAR, Krishi Anusandhan Bhawan, Pusa, New Delhi for information."
13. In view thereof, the determination of this Court is as follows:-
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14. As far as the merger done by the University dated 28.04.2003 is concerned the same is patently illegal as there was no consent of ICAR in the matter. Moreover, other employees for the University would be effected by such an absorption who were not taken into confidence, or their opinion sought before such an exercise was undertaken. Therefore, such a merger is held to be illegal and to that extent WPSS No. 49 of 2011 succeeds, as it is by an association of University employees, where such a merger has been challenged.
15. Having made the aforesaid determination, yet considering the fact that Sri K.C. Paneru (respondent No. 4 in WPSS No. 49 of 2011) has been continuing as an employee of the University since 2003 and meanwhile, he has now been promoted to the post of Assistant Account Officer as stated by Mr. Ghanshyam Joshi, Advocate, this Court though hold such an absorption/merger to be illegal, but yet a special equity lies in favour of respondent No. 4 - Mr. K.C. Paneru (in WPSS No. 49 of 2011).
Therefore, the University is at liberty to pursue the matter with the ICAR and in case they both jointly agree, appropriate order be passed in his case, rectifying the absorption of Sri K.C. Paneru, with retrospective effect.
16. The logical conclusion with the above determination would be that since the merger itself is illegal, no benefit can be granted to the petitioners in WPSS No. 949 of 2013 and WPSS No. 1274 of 2013, as is being sought in these petitions, who are after only relying on such merger, claiming that their services are now with the University. In any case, even if that merger held to be correct it was the merger only regarding two persons, mentioned in the merger. It was not a merger where the entire posts of Accountants with that of Accountants in the University. Therefore, the contention of the petitioners (in WPSS No. 949 of 2013 as well as 7 WPSS No. 1274 of 2013) cannot be accepted. Hence the writ petitions fails and are dismissed.
17. In view of the above observations, the WPSS No. 49 of 2011 succeeds and WPSS Nos. 949 of 2013 and 1274 of 2013 are dismissed.
5. We heard Mr. A.S. Rawat, learned Senior Counsel assisted by Mr. Alok Mahra, learned counsel on behalf of the appellants in SPA No. 193 of 2014. The arguments of learned senior counsel have been adopted by Dr. Udyog Shukla, learned counsel, who appears for the appellants in SPA No. 227 of 2014. We also heard Mr. Ghanshyam Joshi, learned counsel on behalf of the appellant in SPA No. 203 of 2014, Mr. Ganesh Kandpal, learned counsel on behalf of the writ petitioner in Writ Petition (S/S) No. 49 of 2011, Mr. Rajendra Dobhal, learned Senior Counsel, assisted by Mr. Paresh Tripathi, learned counsel for the G.B. Pant Nagar University and Mr. Aditya Singh, learned counsel for the party respondents in SPA No. 227 of 2014 and SPA No. 193 of 2014.
6. The facts, which are not in dispute, are as follows:
The Indian Council of Agricultural Research (hereinafter referred to as "ICAR") is a Government of India body, which is devoted to agricultural research. It appears to be completely funded by the Government of India. It appears to have incorporated certain projects, which came to be known as Krishi Vigyan Kendra (hereinafter referred to as "KVK"). It entered into a Memorandum of Understanding (hereinafter referred to as "MoU") with the respondent-University. This 8 MoU was entered into on a format, which appears to be similar.
In fact, learned senior counsel for the University would point out that for every KVK, a separate MoU was entered into. The MoU purports to refer to the mandate of the ICAR. Thereafter, there is reference to the project of the KVK having the following mandates:
"i) Conducting "on-farm testing" for identifying agricultural technologies for location specific sustainable land use systems.
ii) Organise training to update the extension personnel with the advances in agricultural technology on regular basis.
iii) Organise vocational training courses in agriculture and allied vocations for the farmers with emphasis on "learning by doing".
iv) Organise front-line demonstrations to generate production dated and feedback information."
7. It is relevant to notice Clause 5 (i) and (ii). It reads as under:
"5(i) Salary assistance in respect of competent scientists and technical staff in different disciplines (Agriculture Extension, Agronomy, Plant Breeding, Livestock Production, Horticulture, Home Science, Agricultural Engineering, Fisheries, Agro-Forestry, Soil Science and Plant Protection) based on the local needs and requirements for taking up various activities of the KVK as per mandate:
5(ii) Assistance for salary in respect of modest office staff necessary to support the scheme."
8. We may also refer to Clause 6, which reads as under:
"6. For scientific and technical cooperation in the effective implementation of the scheme and for obtaining assistance as stated herein above, the Grantee (second party) shall make available the following:9
(i) At least Twenty hectares of good quality cultivable land at suitable location, fish ponds or other required field / laboratory / classrooms facilities for imparting instructions through work-experience / learning by doing.
(ii) Required roads, water, electricity, communication, sewer and other appropriate facilities.
(iii) Required Staff, Building, equipments and animals presently available with the Grantee (institution) and specifically identified by Council for transfer to KVK as agreed for joint use from time to time.
(iv) Monetary and material support in addition to the provision made by the Council with a view to rapidly develop the Krishi Vigyan Kendra and enlarge their programmes; and the profit / resource generated from KVK farm / animals etc. will be ploughed back and utilized for development and execution of schemes.
(v) A concrete action plan indicating financial and logistic support for the satisfactory continuance of the KVK programme after the central assistance is phased out by the Council.
9. Clause 7 contains the terms, which the University has agreed to. It reads as under:
"7. The Grantee (second party), in addition, agrees to :
(i) Open a separate Bank account in the name of KVK where entire grants-in-aid redceived from the Cuncil would be deposited and amount will e withdrawn for the expenditure to be made only for the activities / programmes of the KVK including salary of the staff of KVK.
(ii) The interest earned out of Council's grant will be indicated in KVKs account and intimated to the Council half yearly along with progress report. The interest earned will be counted 10 while remitting / releasing grants. Grants will be released less by the income earned by the KVK.
(iii) Seek prior approval of the Council if paid higher salary to staff such as by grant of advance increments or ad-hoc increases as proposed.
(iv) Associate the ICAR in the Selection / Recruitment Comittees appointed for the recruitment of the scientific, technical and other personnel of the KVK.
(v) Keep the designations and duties of the staff in accordance with the provisions made in the scheme.
(vi) Mortgage the land / farm of the KVK to the ICAR before the fund for infrastructure development is released from the Council and the mortgage paper be submitted to the Council for record.
(vii) Not to divert / transfer / terminate any scientist, technical and office staff of KVK for any other work other than that of Krishi Vigyan Kendra.
(viii) Treat KVK staff at part for the purpose of privileges, amenities and facilities permissible to other staff of the Grantee.
(ix) Consult the Council before making any change in the programme of the Kendra or the personnel employed therein.
(x) Ensure that if any staff of the Kendra leaves to take up any other employment, he / she invariably leaves behind a report on the work done during the relevant period together with all data collected to enable his successor to compile the complete report at the end of the year.
(xi) Keep the Council constantly informed about the progress and the problems of the Krishi Vigyan Kendra through the proceedings of the meeting, training courses being offered etc. 11
(xii) Allow the incharge, Krishi Vigyan Kendra to directly correspond with the Council in regard to the routine activities, progress and plans of the Kendra.
(xiii) Permit the Local Incharge of Krishi Vigyan Kendra to interact with the Council on policy and financial matters.
(xiv) Constitute the Scientific Advisory Committees duly approved by the ICAR as per the guidelines provided by the Council and subject to change in the guidelines from time to time.
(xv) Allow the Council to review the KVK by ORT and agree to follow the approval recommendations by the Council."
10. Finally, we may refer to Clause 8, which provides as follows:
"8. Further, both the parties mutually agree that:
(i) The Kendra or the Scientists responsible for doing outstanding work in organizing training programmes and other activities and significantly contributing towards agricultural production in the area shall be given due recognition.
(ii) All staff of KVK shall be borne on the establishment of grantee only. The administrative control over the staff employed under the scheme, therefore, shall vest in the host institution. The placement of staff working in the project after the termination of the project shall be the sole responsibility of Grantee (second party) without having any liability on the Council.
(iii) The Incharge, Krishi Vigyan Kendra and other staff shall be made available for meetings and consultations at the Council's Headquarters, when needed as per the TA/DA rules of the grantee.
(v) In case of the development of a new technique of some other innovation, the Council's 12 permission shall be sought before publishing it.
(vii) On the basis of the assessment of these reports, the Council would release grants for the scheme every half year. In the event of an unsatisfactory progress of work at a Kendra as assessed by the Council, the Council may stop the release of further grants to such Kendra or terminate the project funding without assigning reasons.
(viii) The expenditure incurred from the grant will be audited by the Accountant General, Central Revenues / Commerce, Works and Miscellaneous or Accountant General of the State concerned or the Examiner of the Local Fund Accounts or Statutory Auditors of the Grantee Institutions or a Chartered Accountant or the ICAR's own interest auditors. Such auditors will furnish to the Secretary ICAR by the end of December of each year a certificate to the effect that the accounts of previous year ending on March have been audited and the grant has been spent on the objects for which it was meant.
An unspent balance should be refunded to the Council on the termination of the scheme.
Further grants in respect of the scheme will be stopped unless the audit and utilization certificates in the prescribed proforma are received within a period of three years after the end of the financial year during which the grant has been made. Besides stoppage of grant of the KVK scheme due to non-receipt of the Audit and Utilisation Certificate, the Council at its discretion may stop release of grant for other schemes being conducted at the time under the control of the defaulting grantee till the Audit and Utilisation Certificates due are received.
In addition to the normal audit as stated above Secretary, ICAR may also get special audit conducted by ICAR Inspection Team.
13(xx) The project is essentially a cooperative / partnership venture. Any matter not covered specifically in this Memorandum of Understanding may be settled by mutual discussion. On points, where disagreement persists, the matter may be deferred to the Secretary of the Council whose decision shall be final and binding on the parties.
(xxv) For contravening or for non-complying with any of the conditions of MOU by the Grantee, Council can terminate the project without any notice for the same and without any liability whatsoever."
11. The appellant in Special Appeal No. 203 of 2014 - Kailash Chandra Paneru was actually appointed as Office Superintendent cum Accountant in the year 2003 of the KVK. The next development to be noticed in chronological order is the Resolution passed in the 188th meeting of the Board of Management of the University. The translation of the same, made available to us, reads as follows:
"Resolution Number - 18 To incorporate non - teaching posts sanctioned for the Krishi Vigyan Kendra into the Ministerial and Stenographer Cadres as per the post sanctioned, regarding, The Governing Council discussed the matter, it was resolved in the discussion that the non-teaching posts sanctioned for the Krishi Vigyan Kendra are approved to be incorporated as the post to 'Superintendent-cum-Accountant' shall be called the post of 'Accountant' in the Accountant Cadre as well as the post of junior Stenographer-cum- Computer Operator' shall be called the post of 'Stenographer' in the stenographer Cadre, respectively. The seniority of such employees in their respective cadre shall be fixed at the lowest 14 position as per the Governing Council held on 10.- 04-2003."
12. Following the same, the next crucial date which emerges is the decision taken on 28.04.2003. Translated effect of it appears to be as follows:
In the light of the Resolution dated 10.04.2003, a decision was taken to adjust Kailash Chandra Paneru (appellant in Special Appeal No. 203 of 2014) and another. Kailash Chandra Paneru was adjusted in the Accounts Cadre of the University.
13. Apparently, the members of the Accounts Cadre of the University were aggrieved by the Resolution dated 10.04.2003 and the consequential order dated 28.04.2003. It is seemingly on the said basis that they have approached this Court in Writ Petition (S/S) No. 49 of 2011. It is subsequent to the same that other writ petitions were filed by other persons, working in the Accounts Section in the Krishi Vigyan Kendra, in the form of two other writ petitions, namely, Writ Petition (S/S) No. 949 of 2013 and Writ Petition (S/S) 1274 of 2013. Apparently, they seek to have a common seniority list with the persons working in the Accounts Cadre. The reasoning of the learned Single Judge appears to be primarily based on Clause 7(vii) of the MoU, which we have already adverted to. In substance, it prohibits transfer or diversion of an employee in the KVK to other duties.
14. Mr. A.S. Rawat, learned senior counsel would contend that the stand of the University cannot be sustained. The appellants have been recruited by the University; they 15 underwent the selection process and they have been favoured with appointment . The terms of the appointment orders would show that they will be governed by the various provisions of the Act and Rules and Regulations made under the Act. Evidence is produced before us also to the effect to show that the benefit of Dying in Harness under the Regulations have been made available to them. They retired on attaining the age of superannuation like the employees of the University. In every respect, they are treated as employees of the University. Even pension is being paid by the University. Learned senior counsel would particularly emphasize that it is the aspiration of every employee to be promoted to the next higher cadre. In substance, the contention appears to us to mean that the employer has a duty to prevent stagnation of employees. According to learned senior counsel, unless this Court interferes, the position would be that they would begin and end in the entry post. It is pointed out that the Resolution dated 10.04.2003 would show that a decision was taken to merge the cadre, which was well within the power of the University. As far as the funding is concerned, he would submit that it does not matter whether funds are made available by the ICAR or not. It is an arrangement made between ICAR and the University. He would also submit that the learned Single Judge has observed that the appellants are employees of the ICAR and it cannot be sustained. Learned Senior Counsel for the appellants also contended that the rules of reservation are being followed in the appointment of the appellants. 16
15. Mr. Ghanshyam Joshi, learned counsel who appears in SPA No. 203 of 2014 would contend that his client was adjusted on 28.04.2003. The seniority list was published thereafter which showed the name of his client in the seniority list of accountants in the year 2005. The writ petitioners were aware of both the decisions taken in the year 2003 dated 10.04.2003 and 28.04.2003. Their attempt at disowning knowledge of the developments cannot be accepted as the seniority list was published in the year 2005 to which they did not raise any objection. In fact, it is pointed out that the appellant was promoted as Assistant Accounts Officer in the year 2012.
16. Per contra, Mr. Rajendra Dobhal, learned senior counsel for the University would submit that a perusal of the MoU will not bear out the contentions of the appellants. Diversion of the employees of KVK is impermissible. The case of the University appears to be that as far as the staff and the persons belonging to Accounts Cadre in the University are concerned, they are completely funded by the State Government. It would be impermissible for the appellants to claim the right to be merged in the cadre of Accounts Officer in the University. Quite clearly, they are all appointed in terms of the MoU. Reference is invited to the terms of the appointment orders to show that they had the choice to accept the terms and conditions of the appointment. They accepted the terms and conditions and with eyes wide open and willingly they accepted the terms. The terms include that they are being appointed against temporary posts. The temporary nature of the post is associated with it 17 being connected with the five year plan. In fact, the advertisement and the order would show that they were being appointed for a period of five years, no doubt, with a promise, if we may say so, that it is likely to be continued. Having accepted the terms and conditions, question is posed whether it is open to them to turn around and claim right to be merged with the Accounts Cadre. As far as the conferral of various benefits and privileges at par with University employees are concerned, the response is that it is in conformity with the obligation incurred by the University under the MoU. In other words, the case appears to be that acting under the MoU the appellants were given all the benefits similar to the benefits which were given to the University staff. This would not transform them into University employees. The appointment order is also enlisted to contend that its terms would show that they have been appointed in the KVK.
17. Mr. Ganesh Kandpal, learned counsel for the writ petitioner in Writ Petition (S/S) No. 49 of 2011 would contend that Kailash Chanra Paneru was actually continuing in the KVK till 2012, when he was promoted as Assistant Accounts Officer. Therefore, he was not in a position to approach this Court earlier. He has made representations in the matter which remained unaddressed and it is on that basis that he has approached this Court seeking the relief.
18. Mr. Aditya Singh, learned counsel for the party respondents in SPA No. 227 of 2014 and SPA No. 193 of 2014 18 (accountants in the University service) would submit that in the light of the judgment of the Hon'ble Apex Court in the case of Secretary, State of Karnataka & others Vs. Uma Devi and others reported in 2006 (4) SCC 1, the appellants, at any rate, in Special Appeal No. 227 of 2014 and Special Appeal No. 193 of 2014 cannot have any case. They have been appointed after the Resolution dated 10.04.2003 and they cannot be treated, at any rate, at par with the appellant in Special Appeal No. 203 of 2014. They are not entitled to seek any specific equity as they have been appointed after the judgment of the Hon'ble Apex Court in Uma Devi's case (supra).
19. Mr. Ganesh Kandpal and, in fact, learned senior counsel for the University also point out that as far as the promotion of Kailash Chandra Paneru is concerned, it is after the filing of the writ petition. Learned senior counsel also would submit that it was made subject to the decision in the writ petition and it is also submitted by the learned senior counsel for the University that Kailash Chandra Paneru was drawing his salary from the funds made available by ICAR till his promotion.
20. The writ jurisdiction under Article 226 is discretionary as much as it is extra-ordinary. The purpose of conferring jurisdiction on the writ courts in Article 226 is, essentially, to obtain compliance with law. The courts cannot issue a direction, which will result in a party committing a breach of a contract. The courts will not countenance perpetuation of illegality. With these prefatory remarks, we may embark on 19 examination of the effect of the MoU, the provisions of the Statute, the Government Orders and the claims of the parties in these cases.
21. As far as the appellants in Special Appeal Nos. 227 of 2014 and 193 of 2014 are concerned, there can be no doubt that they have been appointed in the year 2006 after the MoU. There can also be no doubt that the Advertisement was issued by the University, apparently, in fulfillment of its obligations under the MoU. It is also indisputable that, in the appointment orders, it has been categorically mentioned that they are being appointed against temporary posts, which would ordinarily last for a period of five years, with the possibility of it also going beyond. The terms of the Advertisement are no different. Most importantly, though it is the University which has appointed them, care has been taken to mention in the order that they will be appointed in the KVKs. It is submitted by the appellants that they have been appointed as Accountants. It is true that, in the MoU, the post mentioned is Office Superintendent-cum-Accountant; but, in the appointment order, it is mentioned as Accountant. But, we would have to see, what are the essential terms of the MoU. The MoU was, apparently, entered into, as rightly contended by Mr. A.S. Rawat, learned Senior Counsel for the appellants, as both, the ICAR and the University are engaged in the field of agriculture research. It is a part of extension services. In fact, the argument of Mr. A.S. Rawat, learned Senior Counsel for the appellants, that the KVKs are not a transient phenomenon, but they are of a 20 continuing nature, is not disputed by the learned Senior Counsel for the University as the KVKs, against which the appellants have been appointed, continue to exist even today. So, we may take it that it will assume perennial form, though in keeping with the promise that the appointment is for a period of five years but it could continue for future periods. But, the question is whether all this will alter the substance of the appellants' case. We have already adverted to Clause 5 of the MoU. Clause 5(i) would state that salary assistance is to be given in respect of competent scientists and technical staff based on the local needs and requirements for taking up various activities. It is, thereafter, in Clause 5(ii), that it is mentioned that assistance for salary in respect of modest office staff necessary to support the scheme would also be made available by ICAR. To our understanding, appellants would fall within the scope of office staff. What is contemplated by the clause is the modest office staff necessary to support the scheme. We may, now, turn to Clause 6(iii). Clause 6(iii) contemplates, in our view, the obligation on the part of the University to make available required staff, building, equipments and animals identified by the Council for transfer to KVK as agreed for joint use from time to time. In fact, this Clause, in our view, must be understood as referring to the staff, inter alia, who belonged to the University already and who are made available for the purpose of doing the spadework for carrying out all the work entrusted to the KVK. The appellants have been recruited on the basis of the Advertisement, which has been issued after the date of the 21 MoU and are, quite clearly, absolutely bound by the terms of the agreement. We say this as Mr. A.S. Rawat, learned Senior Counsel, has an argument that they were recruited as Accountants and they cannot be imputed with the knowledge of the terms of the MoU and it cannot be used against them. We have no hesitation in repelling that contention, as a proper appreciation of their rights would not be possible, except on a conspectus of the terms of the MoU, without which, they would have no right to be appointed at all.
22. Coming to Clause 7, it contemplates the University's obligation to keep the designations and duties of the staff in accordance with the provisions of the scheme. This also may detract against the claim of the appellants to be merged in the University service. The next, of course, is the most significant Clause, which has also been touched upon by the learned Single Judge, namely, Clause 7(vii). Thereunder, the University is directed not to divert / transfer / terminate any office staff, inter alia, of KVK for any other work other than that of Krishi Vigyan Kendra. This is, in a manner of speaking, is the sheet- anchor of the University. The contention is that, if the appellants' case is accepted, it would undoubtedly result in the University having to act in violation of the said Clause. This is for the reason that if the appellants, who are claiming to be Accountants, are merged and if they are, on the basis of the same as a natural consequence, also considered for promotion to the next higher post and for still further higher post, the result is inevitable that there would be a diversion of the 22 appellants from the task for which they had been selected. There is no gain saying that accepting the contention of the appellants would result in, at least, partly diverting / transferring the services of the appellants from the work of Krishi Vigyan Kendra. Mr. A.S. Rawat, learned Senior Counsel, in an attempt to wriggle out of the said Clause, would contend that even if they are being promoted, they can always be accommodated in the Krishi Vigyan Kendra and, therefore, the rigour of the said Clause can be overcome. We are afraid that the said argument is only stated to be rejected. Once a person is treated as a University employee and promoted in the cadre of Assistant Accounts Officer and even higher posts, as they would be, then he can but be called upon to discharge all the functions associated with the higher post. The said functions may or may not have anything to do with KVK, while it would always have connection with the duties associated with that post in connection with the work of the University in general. This would, undoubtedly, result in undermining the very purpose, which is sought to be achieved by this Clause. Therefore, on this short ground, it becomes clear to us that the case of the appellants becomes vulnerable under Article 226 proceedings, as it is a case which would involve an infraction of a contractual obligation by the University for which the appellants are seeking the relief.
23. Next, we may consider the argument of the appellants that they are being given all the benefits, which are being given to the members of the University staff. They include pension, 23 date of superannuation, dying in harness. It is in this regard that the next Clause, namely Clause 7(viii) becomes apposite. Clause 7(viii) mandates that the University will treat the KVK staff at par for the purpose of privileges, amenities and facilities permissible to other staff of the University. Interpreting this Clause, we can have no hesitation in saying that it becomes the bounden duty of the University to confer all the benefits which are due to the other University staff. They would include all the monetary benefits, the date of superannuation, even including the benefit of dying in harness. Therefore, the conferment of all the benefits on the appellants at par with the University staff is to be ascribed to the fulfillment of the obligation by the University under Clause 7(viii). We must also not be oblivious to the terms of the appointment order, which mandate that they will be entitled to all the rights in terms of the Act, the Rules and the Regulations. It is, apparently, in terms of the same, that the appellants are getting the said benefits. But, this in turn would not, in our view, convert their appointments as Accountants in the KVK, subject to the terms and conditions in the MoU, as the employees of the University.
24. We are fortified in this reasoning by another important feature present in these cases. The funding of the salaries of the appellants, undoubtedly, is being done by the ICAR. This is incontestable. The Accountants in the Accounts Cadre of the University, on the other hand, are receiving their monetary benefits on the basis of the funds being made available by the State Government.
24
25. It must be noted that though the appellants are entitled to be conferred benefits similar to that of the University staff, when it comes to the right to be merged into the cadre of employees of the University, it may result in violation of third- party rights and, therefore, the argument based on similarity of treatment as between the University staff and the appellants may not be acceptable.
26. The Statutes, which have been made, inter alia, contained the following injunction:
"(b) The creation of post and pay scales of the other employees of the University shall be such as approved by the State Government after the concurrence of the Finance Department from time to time."
27. As far as the post in question is concerned, there is nothing to show that the posts, against which the appellants have been appointed, have received the approval of the State Government after the concurrence of the Finance Department from time to time. This has very serious consequences, as the MoU was entered into between ICAR and the University on the specific understanding that the salaries will be completely funded by the ICAR and the State Government had absolutely no role to play. Without the State Government's concurrence, on the other hand, no post can be created in the University. If this is so, particularly when the State Governments, in particular, are facing financial crunch, to burden the Governments with the salary bills of the appellants would 25 appear to be inconsistent not only with the statute, but also with the specific terms of the MoU.
28. The next Clause we must consider is Clause 8(ii). It provides that all staff of KVK shall be borne on the establishment of the University. This is sufficient for us to hold that the appellants cannot be treated as staff of the ICAR. To that extent, we agree with the appellants. But, they are treated as borne on the establishment of the University. The University is also to have administrative control over the staff of the KVK. This is, apparently, for the purpose of conferring power on the University to take disciplinary action where needed and to regulate the conditions of the KVK staff. The next portion of Clause 8(ii) is much relied on by the learned Senior Counsel for the appellants. It provides that the placement of staff working in the project after the termination of the project will be the sole responsibility of the University. Therefore, when the debate took place as to what will be the fate of the appellants in case ICAR brings the project to an end, as is possible under Clause 8(xxv), which we have adverted to, for contravention of the agreement for instance, the first thing we would have to hold is that the same is not the contingency, which is placed before us in the facts. We have not reached the stage, where the project is abandoned or terminated. The project is on-going. But, assuming for a moment that the project is terminated for any reason, the Clause, in our view, only mandates that the University will have to deal with the rights of the members of the KVK staff. It would not, by itself, give rise to any right in 26 favour of the appellants to claim that, while they are employees of the project and employees of the KVK, they should be absorbed in the University service. In fact, we see no right in favour of the appellants for them to contend that they have a right to be absorbed.
29. There is no case of promissory estoppel or of legitimate expectation as such pleaded before us. Mr. A.S. Rawat, learned Senior Counsel for the appellants, no doubt, did make an attempt to contend that there is a promise. A promise to be acted upon and to form successfully a cause of action for a case of promissory estoppel should be based on specific pleading setting out the actual promise made and the fact that the promisee has acted upon the promise. It may not be necessary that he acts to his detriment; all that it requires is that he must change his position acting on the promise. As far as legitimate expectation is concerned, not only he must act, but he should show detriment (See Monnet Ispat and Energy Limited Vs. Union of India and others reported in (2012) 11 SCC 1). We cannot understand from any record produced before us or plea that any promise as such was made or any legitimate expectation was created in the minds of the appellants that they would be absorbed in the cadre of Accountants. On the other hand, any such promise or legitimate expectation would be in the teeth of the specific provisions in the MoU and the appellants cannot, possibly, expect the writ court to direct the University, which is State under Article 12, to act arbitrarily by violating the terms of the agreement. We also notice Clause 27 8(xx). It speaks about the project essentially being a cooperative / partnership venture. It provides that any of the matters not specifically mentioned in the Memorandum may be settled by mutual discussion. Regarding matters, where disagreement persists, the matter has to be referred to the Secretary of the ICAR whose decision is to be treated as final. So, essentially, the project was envisaged as a cooperative venture. It was to be funded by the ICAR. The employees were to be treated as of the KVK. The University was, undoubtedly, saddled with certain liabilities primarily in the matter of equality of treatment with reference to various service benefits qua the staff of the University. Beyond that, we cannot read anything into the terms of the MoU.
30. Coming to the specific facts, as far as the appellants in Special Appeal Nos. 227 of 2014 and 193 of 2014 are concerned, they have been appointed in the year 2006. We have noticed the terms of the appointment besides, of course, the terms of the Advertisement. We can safely conclude that they were appointed on a temporary post and for a period of five years, ordinarily, with scope for extension beyond five years. They have been appointed as employees of the KVK and not as University staff as such. Though, it may be true, as Mr. A.S. Rawat, learned senior counsel for the appellants would submit, that the work of KVK is the same as the work of the University, that is not sufficient to convert them into University staff per se as it involves various aspects, most importantly, the aspect relating to the fact that the University staff is completely 28 funded by the State Government. The appellants in Special Appeals Nos. 227 of 2014 and 193 of 2014 are KVK employees. They seek direction to have a common seniority list. There is no complaint that there is any violation of the obligations of the University under the MoU in the matter of disbursal of benefits, conferment of privileges other than the inclusion of their names in the common cadre of Accountants. Their only complaint is, essentially, that they should be given promotion also. This can be done only if they are placed in the feeder category for promotion to the post of Assistant Accounts Officer. This would mean they would have to be fused with the category of Accounts Officer of the University. It must be noticed that the appellants though point out that they have been appointed as Accounts Officer in the order of appointment, but they are appointed as Accountants in the KVK. KVK, as we have already held, is a project resulting from the MoU between the ICAR and the University. The members of the University per se are completely funded by the State Government. The equality under Article 14 of the Constitution of India is predicated between equals. Can they be treated as equals with the Accounts cadre of the University? Our answer is an emphatic 'No', as they are employees of the KVK. Though they are conferred all the benefits similar to that of the University staff, as we have already held, that will not convert them into University staff. Therefore, we would think that allowing the prayer of the appellants/writ petitioners in Writ Petition (S/S) No. 949 of 2013 would involve transgression of the contractual obligations entered into by the University. We would have to 29 necessarily involve the University in violating the Clauses which we have referred to. This we refuse to do in a writ petition under Article 226 of the Constitution of India.
31. The next aspect we must consider is a vexed issue. The basis for their claim appears to be the Resolution dated 10.04.2003. It was passed in the 188th meeting of the Board of Management. Mr. A.S. Rawat would, in fact, submit that the Board of Management is the supreme body under the University Act. He did take us through the powers and functions of the Board of Management. He would submit that the Board of Management had all embracing powers with it and it could, therefore, pass Resolution as was done on 10.04.2003. He would contend that in terms of the Resolution dated 10.04.2003, the supreme body had deemed it fit to take a decision to merge the post of Office Superintendent cum Accountant into the Cadre of Accountants of the University and this having been done and a common seniority list also having been made, where Kailash Chandra Paneru was shown in the list of 2005 as an Accountant, the learned Single Judge should not have refused the relief. As far as the appellant Kailash Chandra Paneru is concerned, his case stands on a slightly different footing, which we must notice. He was appointed in the year 2000. It is pointed out that there is another MoU. Apparently, the learned Single Judge has proceeded on the basis that the terms of the MoU produced are applicable. We are constrained to proceed on the said basis in the absence of any other evidence to the contrary. Proceeding 30 on the basis that the terms of MoU were applicable at the time when Kailash Chandra Paneru was appointed (he was also appointed as an employee in the KVK), the University has taken a decision to merge. Based on the same, two persons were merged. One was Kailash Chandra Paneru and another was the person, who was not before the writ court also as he was not made a party. Kailash Chandra Paneru, in fact, incidentally got himself impleaded in the writ petition. No doubt, Kailash Chandra Paneru has a case that the writ petition was filed in the year 2011, whereas the orders were passed in the year 2003. We do notice the absence of any finding regarding the plea based on laches except that the learned Single Judge has, no doubt, stated that Kailash Chandra Paneru was appointed in the year 2003 and he was also promoted as Assistant Accounts Officer and differential treatment has been given, as we have already noticed in the judgment, insofar as matter was referred to the ICAR.
32. If we scan the findings of the learned Single Judge in the judgment, there is no specific advertence, undoubtedly, to the Resolution dated 10.04.2003. There is no discussion as such. The attention was focused essentially on the decision dated 28.04.2003, which, no doubt, shows that the University took a decision to adjust Kailash Chandra Paneru and another in terms of the Resolution dated 10.04.2003. We may proceed on the basis that Resolution dated 10.04.2003 is general in nature and not confined to any two persons. We also must notice that the Writ Petition (S/S) No. 49 of 2011 has been allowed in full. 31 Therefore, the prayers, as sought for in the writ petition, must be treated as allowed. Appellants in Special Appeal Nos. 227 of 2014 and 193 of 2014 have not filed any appeal with leave against the judgment in Writ Petition (S/S) No. 49 of 2011, wherein the writ petition was allowed, meaning that Prayer No. 3 was granted. Prayer No. 3 included challenge to both, the Resolution dated 10.04.2003 as also the consequential order dated 28.04.2003. Therefore, both must be treated as quashed. If that is so, quite apart from the fact that we are in agreement with the learned Single Judge that the posts could not have been merged, having regard to the consequences that will flow from the same as we have already elaborately considered in the light of the terms of the MoU, we are in agreement with the decision of the learned Single Judge that any such merger would involve violation of Clause 7(vii) of the MoU in particular. This would mean that we come to the conclusion that the decision to merge is bad. In fact, in answer to the case set up by the appellants in Special Appeal Nos. 227 of 2014 and 193 of 2014, the University in the counter affidavit would rely on a letter as follows:
"6. That the contents of paragraph no. 8 of the writ petition are based on records, but after the decision passed by the B.O.M. in the year 2003 State Govt. of Uttarakhand received the decision and issued a G.O. No. 333/XIII-II/20(2)/08 dated 30.04.2008 power vested to the B.O.M. under act & statutes chapter 25 under section 28(R) (3) has been ceased for the purpose of post & pay scales. However, it is stated that the post of Office Superintendent-cum- Accountant in Krishi Vigyan Kendra does not belongs to Accounts cadre of the University as Account cadre of the University is financed by the 32 State Government whereas the post of office Superintendent-cum-Accountant of Krishi Vigyan Kendra is 100% financed by ICAR, which is a Central Govt. Dept. of India and will be co-terminus with the currency of K.V.K. (Project). A true copy of the Government Order dated 30-04-2008 is being filed herewith and marked as Annexure No. CA-4 to this counter affidavit."
33. Therein, the government has withdrawn the powers for creation of posts and pay scales. Such being the position, we would think that, though there is no specific finding acknowledged by the learned Single Judge regarding the challenge to Resolution dated 10.04.2003, having regard to the manner in which the case was disposed of, as also the absence of any legal right with the appellants to claim merger with the Accounts cadre of the University, we would think that we need not interfere.
34. It is true that, in the case of Kailash Chandra Paneru, i.e. appellant in Special Appeal No. 203 of 2014, the writ petition was launched after a period of nearly 8 years of the decision. No doubt, the writ petitioner seeks to contend that they were not in the know of things. No rejoinder affidavit is filed by the writ petitioner. The pleading in the counter affidavit of Kailash Chandra Paneru (appellant) seems to clearly suggest that seniority list was made in the year 2005. As far as promotion to the post of Assistant Accounts Officer is concerned, it is done only after the filing of the writ petition in the year 2012 and, that too, it was made subject to the decision in the writ petition. Though, ordinarily, we would have thought it fit that we 33 should interfere in the case of Kailash Chandra Paneru on the basis of laches, we would think that, having regard to the fact that the merger, which was ordered by the University, may not be in conformity with the MoU and it would clearly result in the University acting in violation of the agreement, we should not interfere with the same.
35. In the Statute made, apparently, under Section 28(r), it is provided as follows:
"Section 28(r) (a) Number of teachers in each department and their qualifications shall be as recommended by the Academic Council and approved by the Board of Management.
(b) The number of other salaried employees of the University and its Farm and their qualifications shall be as recommended by the Vice-Chancellor and approved by the Board."
36. We, no doubt, notice that there is Clause (e), which provides that the Board of Management shall, in special cases, have power to create the posts not covered by the above provisions. What is the effect of this? We may have felt the need to be detained by this provision; but, for the fact that the merger would result in violation of the MoU. Therefore, we need not be detained by this aspect of the matter.
37. The upshot of the above discussion is that the appeals will stand dismissed. No order as to costs. We make it clear that this judgment will not stand in the way in the matter of consideration of the case of Kailash Chandra Paneru by the ICAR in terms of the judgment of the learned Single Judge.
(V.K. Bist, J.) (K.M. Joseph, C. J.)
15.09.2017 15.09.2017
Rahul