Allahabad High Court
Rashid Hassan vs Aligarh Muslim University And 3 Others on 22 November, 2022
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 7078 of 2021 Petitioner :- Rashid Hassan Respondent :- Aligarh Muslim University And 3 Others Counsel for Petitioner :- Sharad Malviya,Anas Mahboob Counsel for Respondent :- Shashank Shekhar Singh Hon'ble Saumitra Dayal Singh,J.
Heard Sri Sharad Malviya learned counsel for the petitioner and Sri Shashank Shekhar Singh learned counsel for the University.
Presently challenge has been raised to the impugned order/communication dated 25.3.2021 received by the petitioner from the Assistant Registrar, Cadre Review Section. The petitioner has described that communication to be the order deciding his appeal filed under the second proviso to Section 19(3) of the Aligarh Muslim University Act, 1920 (hereinafter referred to as the 'Act').
Having heard learned counsel for parties and having perused the record, undisputedly, the petitioner was appointed as Technical Assistant by the respondent University on 07.3.1988. On 07.4.2014 under earlier order of the Vice Chancellor, office memo was issued by the Registrar of the University providing for re-designation of the post of Technical Assistant as Instructor and further providing for re-designation of persons working as Instructors as Assistant Professors, subject to fulfillment of certain conditions. Petitioner applied for re-designation as Assistant Professor. On 19.6.2014 a communication came to be issued by the Deputy Registrar (Administration-T) of the University stating that the Vice Chancellor of the University had in exercise of his powers vested under Section 19(3) of th Act, re-designated the petitioner as Assistant Professor. The petitioner joined on such re-designated post. Subsequently, vide further office memo dated 30.9.2014 the Deputy Registrar (Administration-T) of the University informed that the Vice Chancellor had, again in exercise of powers vested in him under Section 19(3) of the Act, approved the withdrawal of the earlier office memo dated 19.6.2014. Consequently, the petitioner was re-designated as Technical Assistant. Till this stage, there is not dispute as to the correct facts.
Then, on 26.12.2014 the petitioner claims to have filed an appeal against the decision of the Vice Chancellor, under second proviso to Section 19(3) of the Act. It was addressed to the Vice Chancellor (Chairman, Executive Council). It is also true that there is no order of the Executive Council specific to the above appeal claimed to have been filed by the petitioner. However, it does appear that on such representation made by the petitioner, the matter came to be referred to the Cadre Review Section of the University. That Committee has declined to allow the claim made by the petitioner vide its communication dated 25.3.2021 in the following terms:
" viii. You made an appeal dated 22.12.2014 under Section 36(B) of the AMU (Amendment) Act, 1981 to the Chairman, Executive Council against the Office Memo. Admin/LD/2011/T dated 30.09.2014, requesting therein to treat Office Memo. Admin/LD/2011/T dated 30.09.2014 as Null & Void.
(Your above appeal was placed before the Standing Establishment-cum-Grievance Committee of the University in its meeting held on 02.06.2015 under item No.2.) The members of Standing Establishment-cum-Grievance Committee of the University came on the consensus that the decision of the Vice-Chancellor to withdraw restoration of the post of Instructors in the Polytechnic (Boys & Girls) vide Office Memo, 1989 dated 07.04.2014 and upgradation of Mr. Rahid Hasan to the post of Assistant Professor vide Office Memo. No. Admin/LD/1174 dated 19.06.2014 was correct and your appeal dated 22.12.2014 was recommended to be rejected by the above committee.
ix. The above recommendation of the Standing Estalishment-cum-Grievnace Committee was placed before the Executive Council in its meeting held on 03.10.2015. The Executive Council accepted the recommendation of the Standing Estalishment-cum-Grievance Committee and decided that a committee be constituted to re-examine the issue. The E.C authorized the Vice-Chancellor to decide the members of the said Committee. The Vice- Chancellor under authorization of the Executive Council at its meeting held on 03.10.2015 (under item No. 17) constituted a committee to re-examine the matter of upgradation of the post of Technical Assistant to Instructor and further upgraded as Assistant Professor in the University Polytechnic (Boys & Girls).
x. The aforesaid Committee in its report vide D.No. 2215/WC dated 25.01.2016 recommended that the appeal of Mr. Rashid Hasan claiming to be re-designated as Instructor and thereafter upgraded as Assistant Professor be rejected.
xi. The recommendation of the above committee was accepted by the Executive Council under item No. 26 in its meeting held on 03.10.2015 and 23.07.2016. It was clarified in the meeting of Executive Council that the appointment of Assistant Professor can only be made through General Selection Committee under Statute 27 of the Statutes of the University. The EC further decided that the matter will be refferred to the UGC for clarification and after receiving the reply from the UGC, action will be taken accordingly.
xii. Consequently, a letter was sent to the UGC vide D.No. 26/CR dated 28.09.2016 followed by a reminder vide letter D.No. 08/CR dated 13.07.2017.
In response to the letter D.No. 08/CR dated 13.07.2017, the UGC vide letter No. F.31-11/97(JCRC) dated 22.2.2018 has clarified that the decision of granting the pay scale of Assistant Professor was only for University Polytechnics and vacantional training centres and the same cannot be extended to other Departments of University.
But in the above UGC letter dated 22.02.2018, it is not mentioned that Technical Assistants can be redesignated as Instructor and further upgraded as Assistant Professor.
The University again sent a letter to the UGC vide letter D.No. 10/CR dated 24.04.2018 seeking clarification whether the University should continue with the existing post of Technical Assistant OR redesignate it as Instructor as requested earlier vide letter D.No. 26/CR dated 28.09.2016 and further requested to communicate the decision of the UGC at the earliest so that further course of action may be taken in the matter. The response-from the UGC is still awaited in the matter.
xiii. Despite above, the University has not received any communication / scheme from the UGC by which the post of Technical Assistant may be upgraded to the post of Assistant Professor.
Since, you are holding the core post of Technical Assistant on which you were appointed through General Selection Committee (direct recruitment basis) which is a group ? "C' post. Therefore, your post can not be upgraded as Assistant Professor which comes under group-'A' post.
xiv. The Appointment of Assistant Professor can only be made on the recommendation of General Selection Committee as stipulated in Statute 27 of the University. The University can not violate Statute 27 of the University.
xv. Your case may be considered only after receiving the approval of the University Grants Commission.
Your representation dated 22.02.2021 was placed before the Vice-Chancellor and found not enable being devoid of merit, hence rejected on the above grounds.
You are hereby informed accordingly."
Undisputedly, the petitioner's principal grievance as raised in the appeal document dated 22.12.2014 filed on 26.12.2014 (addressed to the Vice Chancellor in his capacity as Chairman, Executive Council) was against the office memo dated 30.9.2014. That office memo only communicated the decision made by the Vice Chancellor under Section 19(3) of the Act to withdraw the office memo dated 19.6.2014. Clearly, the petitioner was entitled to file an appeal against that order by virtue of second proviso to Section 19(3) of the Act. The fact that the petitioner may have filed that appeal before the Vice Chancellor in his capacity as the Chairman of the Executive Council may not have rendered the appeal defective or incompetent as may have allowed it to be rejected or ignored. Properly, the office of the Vice Chancellor may have communicated to the petitioner to represent the appeal before the Registrar. In any case, the appeal was not ignored or kept pending without any consideration. For whatever reason and in whatever circumstance, it came to be processed and the matter was thus directed to be addressed by the Cadre Review Section. The entire discussion made in the impugned communication dated 25.3.2021 arises on such reference made to the Cadre Review Section, at the instance of the petitioner. Also, that consideration came to be made while making compliance of the earlier direction issued by this Court in Writ-A No. 14799 of 2020, Rashid Hassan Vs. Union of India and Others dated 10.2.2021.
In absence of any decision made by the Executive Council upon consideration of the appeal thus filed by the petitioner, it is difficult to accept the submission being advanced by Sri Singh that the Executive Council has chosen to disapprove the decision of the Vice Chancellor dated 07.4.2014.Though, a resolution of the Executive Council dated 12.7.2014 does appear to exist (Copy of which is annexed as Annexure-CA5 to the counter affidavit of the University), neither the same can be referred to as an order dealing with the appeal filed by the petitioner as that appeal was filed much later on 26.12.2014 nor it is otherwise enforceable on its own in view of clear language of first proviso to Section 19(3) of the Act. Reading of that provision leads to the conclusion that the Executive Council may have formed its own opinion as to the legality and correctness of the decision made by the Vice Chancellor of the University. However, if it was reaching an opposite conclusion or if it was disapproving the decision of the Vice Chancellor it could not have set aside the decision of the Vice Chancellor but only made a reference to the Visitor. That being the statutory provision, the resolution of the Executive Council dated 12.7.2014 did not become enforceable in law, on its own strength.
To summarise, it has to be observed, the petitioner had a right to appeal against the exercise of power vested under Section 19(3) of the Act against the order of the Vice Chancellor as communicated vide office memo dated 30.9.2014. That appeal is seen to have been filed by the petitioner. In absence of any decision of the Executive Council, the same has to be treated pending notwithstanding the report of the Cadre Review Section dated 25.3.2021. As to the challenge raised to that report, the writ petition cannot succeed. The jurisdiction to hear and decide the appeal being vested in the Executive Council, it may remain with the Executive Council to consider the merits and correctness of the report made by the Cadre Review Section. No further observation is required to be made in that regard in view of pendency of the appeal before the Executive Council.
As to the resolution dated 12.7.2014, passed by the Executive Council, the same is found to deficient in law. Plainly, the resolution of the Executive Council conflicts with the earlier order of the Vice Chancellor. Therefore, the only course open to the Executive Council of the University was to have referred the matter to the Visitor in terms of the first proviso to Section 19(3) of the Act. It never became open to the Executive Council to itself annul the decision of the Vice Chancellor.
Accordingly, the writ petition is disposed of with the directions, the Executive Council of the University may first proceed to make the reference to the Visitor with respect to the correctness or otherwise of the decision of the Vice Chancellor communicated to the petitioner vide office memo dated 19.6.2014 with respect to re-designation of the posts of Technical Assistant as Instructors and Instructors as Assistant Professors. Such reference may be made within a period of one month from today.
Subject to the decision of the Visitor, the Executive Council may then proceed to hear and decide the petitioner's appeal dated 22.12.2014 filed on 26.12.2014.
Order Date :- 22.11.2022 Faraz