Allahabad High Court
State Of U.P. Thru. Its Chief Secy. ... vs Ram Pratap Singh And Others on 21 March, 2022
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R Reserved Court No. - 2 Case :- SPECIAL APPEAL No. - 75 of 2022 Appellant :- State Of U.P. Thru. Its Chief Secy. Govt., Lko. And Another (In Wria 2000327 Of 2000) Respondent :- Ram Pratap Singh And Others Counsel for Appellant :- C.S.C. Counsel for Respondent :- Srideep Chatterjee,Prashant Singh Atal,Satyanshu Ojha Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Ajai Kumar Srivastava-I, J.
(Per Devendra Kumar Upadhyaya, J.) Heard Shri Amitabh Rai, learned Additional Chief Standing Counsel representing the appellants-State authorities, Shri S. K. Kalia, learned Senior Advocate, assisted by Shri Srideep Chatterjee, learned counsel representing the respondent nos.1 to 19 and Shri Satyanshu Ojha, learned counsel representing Narendra Dev University of Agriculture and Technology, Kumarganj, Faizabad (hereinafter referred to as "the University"). We have also perused the records available before us on this special appeal.
This intra-court appeal has been filed impeaching the judgment and order dated 19.02.2021 passed by the learned Single Judge in Writ Petition No.327 (S/B) of 2000 whereby the writ petition has been allowed, the Government Order impugned therein, dated 18.02.2000 has been quashed and a direction has been issued to treat the respondent nos.1 to 19 as Teacher/Assistant Professor and to make them available all consequential benefits as admissible to their posts.
We may note that under challenge in the writ petition before the learned Single Judge was the Government Order dated 18.02.2000 whereby the earlier Government Order dated 22.07.1999 was partially modified and the respondent nos.1 to 19 (who were petitioners in the writ petition before the learned Single Judge and will be referred to as such hereinafter) were granted U.G.C. (University Grants Commission) pay scale with effect from the date of issuance of the earlier Government Order dated 22.07.1999. It was further provided that nomenclature of the petitioners be changed to Research Assistant and in future no post by the said name or any other name shall be created.
We may also note that by means of the Government Order dated 22.07.1999 which was modified by the subsequent Government Order dated 19.02.2000, U.G.C. pay scale of Rs.2200-4000/- was made available to the petitioners with effect from the date they were declared as Teachers i.e. with effect from 13.03.1992 provided they fulfilled the eligibility criteria of teachers and the work being performed by them was classified as the work of a teacher.
By means of the Government Order dated 22.07.1999 the pay scale of Rs.2200-4000/- was made available w.e.f. 13.03.1992 whereas by the subsequent Government Order dated 18.02.2000 this pay scale was made available w.e.f. 22.07.1999 that is from the date the said Government Order was issued and not from 13.03.1992 which is the date on which these petitioners are said to have been declared as Teachers. By the Government Order dated 18.02.2000, apart from making the pay scale of Rs.2200-4000/- admissible to the petitioners w.e.f. 22.07.1999, the State Government also provided that their nomenclature be also changed to Senior Research Assistant.
As observed above, it is this Government Order dated 18.02.2000 which was assailed by the petitioners by filing the writ petition no.327 (S/B) of 2000 which has been allowed by means of the order dated 19.02.2021 which is under appeal herein.
Shri Amitabh Rai, learned Additional Chief Standing representing the appellants-State authorities has vehemently argued that the learned Single Judge while passing the order under appeal has not appreciated the correct position of fact and law and that the learned Single Judge has clearly ignored the fact that the Government Order dated 18.02.2000 was passed by the State Government taking into account the fact that the resolution of the Board of Management of the University, dated 13.03.1992 whereby the petitioners were declared as Teachers was not affirmed in the subsequent meeting of the Board of Management of the University and as such the claim of the petitioners could be accepted only from the date of approval by the State Government for grant of U.G.C. pay scale which was approved by the Government Order dated 22.07.1999 and not prior to the said date.
It has also been argued on behalf of the appellants that as per the scheme of U.P. Krishi Evam Prodyogik Vishwavidyalaya, Adhiniyam, 1958 and the First Statutes framed thereunder, emoluments of academic staff shall be such as may be approved by the Board of Management on recommendation of U.G.C provided that no grant to meet any portion of emolument shall be available from the State Government unless prior approval of the State Government is obtained and is placed before the Board of Management. However, the learned Single Judge has not considered the said statutory scheme which vitiates the judgement and order under appeal. It has also been argued that the University is though an autonomous body, having been established under a State Legislation which grants only academic autonomy to the University but University is completely dependent on the State Government for finances and hence it is the prerogative and discretion of the State Government to make available a particular pay scale to any academic staff with effect from a date fixation of which is the sole preserve of the State Government. It has, thus, been argued that the modification/amendment made by the Government Order dated 28.02.2000 making the pay scale of Rs.2200-4000/- effective with effect from 22.07.1999 was perfectly lawful and within the competence of the State Government, however, the learned Single Judge has not appreciated the aforesaid legal position which renders the judgment and order under appeal liable to be set aside.
Opposed to the submissions and prayer made on behalf of the appellants-State authorities, learned Senior Advocate representing the respondent nos.1 to 19/petitioners has argued that the reasons indicated in the order dated 18.02.2000, which was under challenge before the learned Single Judge, are not tenable and hence the judgment and order under appeal does not suffer from any error of either of law or of fact hence the same deserves to be affirmed in this special appeal.
Learned Senior Advocate representing the the respondent nos.1 to 19/petitioners has further submitted that the grounds being pressed into service by the learned State Counsel in this appeal do not find mentioned in the Government Order dated 18.02.2000 and as such it is not open to the State Counsel to argue something which is missing in the order which was under challenge before the learned Single Judge. It has also been submitted by the leaned Senior Advocate representing the respondent nos.1 to 19/petitioners that in pursuance of the Government Order dated 22.07.1999 all the petitioners were made available the benefit arising out of the said Government Order and they were also adjusted/appointed as Lecturers/Assistant Professors and hence there was no occasion for the State to have modified the said order by issuing the subsequent Government Order dated 18.02.2000. His further submission is that the petitioners were declared as Teachers/Lecturers by the Board of Management of the University in its meeting held on 13.03.1992 and since under Chapter XII of the First Statutes read with section 28(d) of the Act, it is the Board of Management which is empowered to classify the teaching staff of the University and to give appropriate designation, the State Government had rightly made available the U.G.C. pay scales with effect from the date of such classification i.e. with effect from 13.03.1992. Learned Senior Advocate also submits that it is settled principle of law that validity of any Government Order is to be tested on the reasons and grounds indicated therein and since the grounds being urged in this Special Appeal by the appellants-State authorities do not find mentioned in the Government Order dated 18.02.2000 as such the submissions of the learned State Counsel are not tenable. Further submission of the learned Senior Advocate appearing on behalf of the respondent nos.1 to 19/petitioners is that by the Government Order dated 18.02.2000 it is not only that the U.G.C. pay scale has been made available to the respondents-petitioners with effect from 22.07.1999 in place of 13.03.1992 but also that the nomenclature of their post has been change to Senior Research Assistant which post stood abolished long ago and as a matter of fact the said post did not exist in the University on 18.02.2000. His submission thus is that judgment and order under appeal does not suffer from any error so as to call for any interference by this Court in the instant Special Appeal which deserves to be dismissed.
Shri Satyanshu Ojha, leaned counsel representing the University has supported the submissions made by the learned State Counsel appearing for the appellants-State authorities.
We have given our thoughtful consideration to the rival submissions made by the learned counsel appearing for the respective parties.
To appreciate the issues involved in this case, we need to note certain background facts in brief.
The petitioners were appointed on the post of Senior Research Associates between the year 1986-88 in the University. The Board of Management of the University vide its resolution dated 15.10.1990 decided that all the employees of the University shall be granted U.G.C. pay scales. Accordingly, the said decision of the Board of Management was also intimated to the State Government. The Board of Management on 26.03.1991 resolved to grant U.G.C. pay scale of Rs.2200-4000/- to the Research Associates with immediate effect. The State Government, in the light of the resolution of the Board of Management of the University dated 26.03.1991 sought clarification vide its order dated 29.04.1991 if the petitioners are performing functions, duties and work of teachers. The said query was replied by the Vice Chancellor in affirmation vide his letter dated 08.05.1991. Accordingly, by means of the Government Order dated 18.06.1991 the State Government directed the University that if the Senior Research Associates fulfill the eligibility of teachers they be declared as such. The Vice Chancellor, replied vide his letter dated 15.10.1991 that as per the section 2(k) of the Act, Senior Research Associates fulfill the conditions of being a teacher.
From a perusal of the Government Order dated 22.07.1999 it is apparent that by means of the Government Order dated 29.11.1991 the State Government directed the University that in case the Senior Research Associates fulfill the eligibility of Teachers, the University should take steps to declare them as Teachers as per the provisions contained in Chapter XII of the First Statutes. Pursuant to the said Government Order dated 29.11.1991 the Board of Management of the University in its 85th meeting held on 13.03.1992 on the recommendation of the Academic Council of the University passed a resolution declaring the respondents/petitioners as teachers and referred the matter to the State Government for grant of U.G.C. pay scale of Rs.2200-4000/-. However, the State Government vide its order dated 14.10.1993 instead of granting pay scale of Rs.2200-4000/- to the petitioners granted them the revised pay scale of Rs.1740-3000/-. The said Government Order also provided that nomenclature of Research Assistants be changed to Project Assistants as the cadre of Research Assistant was declared "a dying cadre" on 06.06.1981. The Board of Directors in its 92nd meeting held on 05.09.1994 decided that the nomenclature of the post of the petitioners be altered from Research Associates to Project Assistants and they be made available the pay scale of Rs.1740-3000/-.
The petitioners thereafter filed Writ Petition No.1082 (S/B) of 1995. In the said writ petition this Court, noticing that no counter affidavit was filed by the respondents therein despite several directions having been issued for the said purpose by the Court, passed an order on 07.05.1999 to the effect that the respondents therein shall either pay the pay scale of teachers/Assistant Professors to the petitioners or they shall show cause as to why the same cannot be given to the them.
Pursuant to and in compliance of the said order dated 07.05.1999 the matter was considered by the State Government which issued the Government Order dated 22.07.1999 and directed that the petitioners be made available pay scale of Rs.2200-4000/- with effect from the date they have been declared/classified as teachers i.e. with effect from 13.03.1992, provided they fulfilled the requisite qualification as prescribed by the U.G.C. It was further directed that these petitioners (Senior Research Assistants) be adjusted against the post of teachers in the pay scale of Rs.2200-4000/-. We may note that at the relevant point of time the prescribed pay scale admissible to the lowest cadre of teachers in the University that is the Lecturers/Assistant Professors was Rs.2200-4000/-. Thus, by the said Government Order dated 22.07.1999 the petitioners were not only made available the pay scale of Rs.2200-4000 but also were ordered to be adjusted against the post of Lecturers/Assistant Teachers.
It is also noticeable that the State Government while issuing the Government Order dated 22.07.1999 had taken into consideration certain aspects including its own Government Order dated 29.11.1991 whereby the University was directed to take steps for declaring petitioners as teachers in terms of the provisions contained in Chapter XII of the First Statutes if the petitioners fulfilled the requisite eligibility for teachers. The State while issuing the Government Order dated 22.07.1999 also noted in the said order that pursuant to the Government Order dated 29.07.1999 the Board of Management of the University on the recommendation of Academic Council had taken the decision in its meeting held on 13.03.1992 whereby these petitioner/Senior Research Associates were classified/declared as teachers. By the said Government order dated 22.07.1999 it was also provided that the cadre of Research Associate shall be dying cadre and no appointment against the post of Senior Research Associate shall be made in future in any circumstance. Thus it appears to be based on consideration of the fact that the petitioners were already declared/classified as teachers by the Board of Management of the University in its meeting held on 13.03.1992. The Government Order dated 22.07.1999 also noticed that such classification, under the scheme of the First Statutes, is well within the authority or power of the Board of Management of the University. This Government Order dated 22.07.1999 also notices that such classification/declaration of the petitioners being teachers has been made by the Board of Management in its meeting held on 13.03.1992 on the recommendation of the Academic Council which, as per the provisions contained in Chapter XII of the First Statutes, is the legal requirement.
Learned Single Judge in his judgment and order dated 19.02.2021 has extracted the provisions of Chapter XII of the First Statutes which we also intend to reproduce which is as under:
"CHAPTER-XII CLASSIFICATION OF THE TEACHERS OF THE UNIVERSITY "Section 28(d):
1. The Board of Management shall, from time to time, determine after considering the recommendation of the Academic Council in this behalf, the classification of the teaching staff of the University and appropriate designations, i.e. Professors, Associate Professors/ Readers, Assistant Professor / Lecturers and the like. The Board shall also have power to later or modify such classification in any particular case.
2. The teachers of the University shall be employed on a whole-time basis on the scales of pay approved for the University provided that the proportion of time of the teachers to be devoted to teaching, research and extension or administrative duties should be specified in their contract of employment."
A perusal of the aforequoted provision of Chapter XII of the First Statutes of the University clearly shows that it is the Board of Management of University which is empowered to determine the classification of teaching staff of the University and to accord appropriate designations, that is, Professors, Associate Professors, Readers, Assistant Professors, Lecturers and the like. This, of course, can be done by the Board of the Management of the University on the recommendation of the Academic Council.
The State Government while issuing Government Order dated 22.07.1999 thus appears to have taken into account the provisions contained in Chapter XII of the First Statute and has based its decision on the classification/declaration of the petitioners as teachers made by the Board of the Management in its meeting held on 13.03.1992 and as such made available the pay U.P.G. pay scale of Rs.2200-4000/- to the petitioners which at the relevant point of time was the pay scale admissible to the post at the lowest pedestal amongst the teachers i.e. Lecturers/Assistant Professors.
It is also to be noted that the matter relating to implementation of the Government Order dated 22.07.1999 was considered by the Board of Management in its 104th meeting held on 31.07.1999 whereby it was decided to implement the same and on approval of the Vice-Chancellor all the petitioners (Senior Research Associates) were found fulfilling the conditions contained in the Government Order dated 22.07.1999 and accordingly they were made available the benefit of U.G.C. pay scale of Rs.2200-4000/- with effect from 13.03.1992. By means of an order passed on 12.01.2000 all the petitioners were adjusted against the post of Assistant Professors. Thus, the Government Order dated 22.07.1999 was implemented by the decision taken by the Board of Management in its 104th meeting held on 22.07.1999 and by issuing consequential orders by the University authorities on 11.08.1999 and 12.01.2000 whereby these petitioners were made available the benefit of U.G.C. pay scale of Rs.2200-4000 and were also absorbed/adjusted against the post of Assistant Professors.
It is only after the Government Order dated 22.07.1999 was given effect to and the petitioners were provided the benefits which had accrued to them on the basis of the Government Order dated 22.07.1999 that the State Government issued the order on 18.02.2000 which was challenged before the learned Single Judge.
When we examine the Government Order dated 18.02.2000 which was under challenge before the learned Single Judge, what we find is that by the said order the earlier Government Order dated 22.07.1999 was modified and U.G.C. pay scale made available to the petitioners was made available with effect from 22.07.1999 and not with effect from 13.03.1992. By the said order the nomenclature of the post of the petitioners was changed from Lecturers/Assistant Professors to Senior Research Assistants.
The Government Order dated 18.02.2000 recites the reasons for issuing the same and the reason recited is that since the pay scale of the incumbents holding the post of Research Assistant has been revised with effect from the date of issuance of the Government Order in respect of them as such to maintain parity in the policy of the State Government while making available upgraded/higher pay scale from the date of issuance of Government Order to be issued for the said purpose, the Government Order dated 22.07.1999 issued in respect of the petitioners required partial modification/amendment in the Government Order dated 22.07.1999.
We may also note that as per Government Order dated 22.07.1999 it was not that pay scale of the petitioners was being upgraded or they were being provided higher pay scale; rather they were treated to have been classified as teachers and accordingly they were made available the pay scale admissible to the teachers at the lowest pedestal i.e. Assistant Professors/Lecturers. It is not a case of upgradation of pay scale; rather it is a case where the petitioners, having been classified by the Board of Management of the University in terms of the provisions contained in Chapter XII of the First Statute as teachers were made available the pay scale of Rs.2200-4000. By means of the Government Order dated 22.07.1999 it is not only that the petitioners were made available the pay scale of Rs.2200-4000 but they were also adjusted/absorbed as Assistant Professors/Lecturers and further that it is in this background that the cadre of Research Associates was declared to be dying cadre. In other words it is not a case where the incumbents holding their posts were given the benefit of upgraded or higher pay scale while they remained posted on the same post, it is rather a case where the petitioners while working as Research Associates were classified/declared as teacher and thus U.G.C. pay scale admissible to a teacher in the lowest pedestal i.e. Lecturer/Assistant Professor was made available to the petitioners as well. However, reason indicated in the Government Order dated 18.02.2000 is based on the understanding that it was a case of upgradation of pay scale rather than assignment of pay scale as if peetitioners were not classified or declared as teacher.
So far as the submission made by the learned State Counsel representing the appellants-State authorities to the effect that the resolution of the Board of Management of the University passed in its 85th meeting held on 13.03.1992 was not affirmed in subsequent/next meeting and hence the U.G.C. pay scale could not be extended from the date of 85th meeting held on 13.03.1992 is concerned, we may note that there was nothing brought on record of the writ petition by the State to demonstrate that the said decision dated 13.03.1992 taken by the Board of Management was subsequently annulled, cancelled or rescinded. Counter affidavit filed by the State authorities is on record which we have perused. In the said counter affidavit what was stated was that the State Government had issued Government Order dated 14.10.1993 acting in accordance with the recommendations of the Indian Council of Agricultural Research (ICAR) according to which the Project Assistants were to be appointed on contract basis in the pay scale of Rs.1740-3000/-. The counter affidavit filed by the State also indicated that the University had sent incorrect information to the State Government that the petitioners were declared as Teachers by the Management and that the said fact was wrong and further that the State Government acted on the basis of information provided by the University and allowed the U.G.C. pay scale of Rs.2200-4000/- to the petitioners.
This counter affidavit further stated that the State Government had learnt that the petitioners were not teachers/Lecturers of the University as defined by the U.G.C. and since they were not teachers they were not entitled for the pay scale of Rs.2200-4000/-. The stand thus taken by the State Government while opposing the writ petition was that this wrong was undone by the State Government by issuing the Government Order dated 18.02.2000. The relevant paragraph of the counter affidavit filed by the State before the learned Single Judge in the writ petition is para 6 which is reproduced herein below:
"6. That the contents of paras 9 & 10 of the writ petition are misconceived and the same are denied. On behalf of the Govt. the deponent wants to clarify that the cadre of Research Assistant etc. has been declared to be dying cadre vide G.O. dated 6.6.1981.
The University Grant Commission hereinafter referred to as "UGC" pay scales are admissible to the 'Teachers' only. The petitioners were not teachers as such they could not have been allowed the UGC pay scales. The University had sent incorrect information to the State Government that the petitioners were declared as Teachers by the Board of Management. In fact it was perse wrong. The State Govt. had acted on the basis of incorrect information provided by the University and it has allowed the UGC pay scale of Rs.2200-4000 to 19 petitioners. Since this Hon'ble Court had passed an interim order in WP No.108 (S/B/95 on 07.05.99, the Govt. had allowed the above said pay scales on the basis of an incorrect and wrong information submitted by the University. Subsequently, the State Govt. learnt that the petitioners were not teachers, lecturers of the University as defined by the UGC. Since they were not teachers they were not entitled for UGC pay scales of Rs.2200-4000. This wrong was undone by the State Govt. It has acted bonafidely and honestly while implementing the the incorrect legal procedure. Accordingly to G.O. dated 18.02.2000 it was issued modifying the earlier order dated 22.07.99 by which UGC pay scale was illegally allowed to the 19 petitioners. The higher pay scales ought not to have been allowed to the petitioners under law as the State Govt. cannot act against the statutory directions, pay scales provided by the UGC for the teachers of University.
In view of the above it is clear that the State Government had to issue a modified order on 18.02.2000, undoing the wrong, mistake committed by it. By providing UGC scales to the petitioners without any legal basis the University did not provide correct information to the State Govt. The Govt. under law is bound to act in accordance with law. An administrative mistake can always be corrected subsequently. It is settled law that an administrative order can always be reviewed, modified or recalled if it is against the provisions of law, relevant service rules. The State Government has statutorily duty to act in accordance with University Rules and bye-laws made hereunder. Under these provisions the UGC pay scale is being available to teachers only. However, it is relevant to mention that ICAR, New Delhi has now recommended 5500-9000 for Research Assistant working in the pay scale of Rs.1740-3000."
In the entire counter affidavit, the ground being urged before us that the decision of the Board of Management taken in its 85th meeting held on 13.03.1992 classifying/declaring the petitioners as teacher was not affirmed in the subsequent meeting, is missing. Even otherwise as observed above, nothing was brought on record of the writ petition by the State which could indicate that the said decision of the Board of Management taken in its 85th meeting held on 13.03.1992 was altered or varied or cancelled or annulled in any subsequent meeting.
Having observed as above, we may now notice the case set up by the University before the learned Single Judge in the writ petition. University had filed a short counter affidavit in the writ petition and had admitted in para 5 thereof that the Board of Management in its meeting held on 13.03.1992 vide Resolution No.85:16 resolved to declare those Senior Research Associates who were appointed prior to 13.12.1988 and possessed the qualification of atleast second class in M.Sc. in Agriculture or its equivalent Science subject, as Teacher/Lecturer. It was further averred in the short counter affidavit filed by the University in the writ petition that the said Resolution No.85:16, dated 13.03.1992 was not approved by the Board of Management in its subsequent 86th meeting. The minutes of 86th meeting held on 30.01.1993 of the Board of Management were also enclosed with the said short counter affidavit filed by the University. In respect of the first agenda item relating to ratification of the minutes of 85th meeting, which was considered in the 86th meeting of the Board of Management and it was observed that in the resolution placed at agenda item no.85:16 and 85:17 in place of the words "and the like" the word "allied" has been inscribed on account of typographical error which may be read as "and the like". It was further decided to ratify the decisions taken in the 85th meeting except the decision taken at agenda item nos.85:16 and 85:17. In respect of agenda item no.85:16 and 85:17 it was decided by the Board of Management in its 86th meeting that the matter be referred for legal opinion and thereafter these matters may be placed again before the Board of Management.
It was further stated by the University in its reply filed to the writ petition that the State Government in the meantime vide Government Order dated 14.10.1993 had made available the revised pay scale of Rs.1740-3000/- to the petitioners and also designated them as Project Assistants and in pursuance of the Government Order dated 14.10.1993 the Vice Chancellor issued an order on 27.10.1993 whereby all the petitioners were intimated that they have been appointed as Project Assistants in the revised pay scale of Rs.1740-3000/-
Resolution of the Board of Management passed in its 85th meeting held on 13.03.1992 at agenda item no.85:16 is quoted as under:
" ujsUnz nso d`f"k ,oa izks|ksfxd fo'o fo|ky; QStkckn ds izcU/k ifj"kn dh 85oha cSBd fnukad 13&03&1992 ds en la[;k 85:16 esa fy;s x;s fu.kZ; dk mn~/kj.kA 85:16 ujsUnz nso d`f"k ,oa izks|ksfxd fo'o fo|ky; fo'ofo|ky; esa dk;Zjr lhfu;j fjlpZ dks "f'k{kd" dh Js.kh esa oxhZd`r fd;s tkus ij fopkj ,oa fu.kZ;:-
mDr izLrko ij lE;d fopkjksijkUr fu.kZ; fy;k x;k fd fo}r~ ifj"kn dh lqLrqfr ij fnukad 31&12&1988 rd fu;qDr gq;s lhfu;j fjlpZ ,lksfl,V tks d`f"k vFkok ltkrh; foKku esa ,e0,l0lh dks (de ls de f}rh; Js.kh) dh ;ksX;rk j[krs gks mUgsa f'k{kd@ysDpjj ,.M ,ykbM ?kksf"kr fd;k x;kA ;g fu.kZ; Hkh fy;k x;k fd izcU/k ifj"kn ds mijksDr fu.kZ; ls jkT; ljdkj dks voxr djkrs gq;s mUgsa iz0th0lh0 osru eku fn;s tkus gsrq vuqeksnu rFkk 'kklukns'k fuxZr fd;s tkus dk vuqjks/k fd;k tk;A izcU/k ifj"kn us ;g fu.kZ; fy;k fd fnukad 31&12&1988 ds mijkUr mDr in uke ls fo'o fo.ky; esa dksbZ fu;qfDr u dh tk; vkSj u gh Hkfo"; ess bls mnkgj.k Lo:i izLrqr fd;k tk;sxkA"
The resolution of the Board of Management passed in its 86th meeting held on 30.01.1993 in respect of agenda item no.85:16 and 85:17 of the 85th meeting is extracted herein below:
85:1 xr 85oha cSBd dh d;kZokgh dh iqf"VA 85oha cSBd dh dk;Zokgh dh iqf"V ds le; lfpo us crk;k fd dk;Zokgh dh en la[;k 85:16 ,oe 85:17 esa ",.M fn ykbd" ds LFkku ij Vad.k dh =qfVo'k vykbM Ni x;k gS ftls ,.M fn ykbd i Though nothing further was pleaded either by the University before the learned Single Judge in the writ petition, however, for better clarity of the facts we had required the learned counsel representing the University to place before us the resolution of the Board of Management passed in its meetings held subsequent to 86th meeting. The said resolutions of the Board of Management have been taken on record.
In the minutes of 87th meeting of the Board of Management held on 27.03.1993 it has been recorded that after due deliberation it is decided that since the issue has far reaching consequences as such the State Government be requested to get the matter decided latest by 30.09.1993. In the 88th meeting held on 26.06.1993 though the issued was deliberated, however, no decision was taken by the Board of Management.
In the 89th meeting of the Board of Management held on 21.09.1993, the matter was again considered and it was decided that the decision taken earlier shall stand deferred. The relevant extract of the decision so taken by the Board of Management in its 89th meeting is extracted hereunder:
"89:15 v/;{k egksn; dh vuqefr ls vU; fo"k;A ¼d½ ofj"B 'kks/k lgk;dksa ,oe 'kks/k lgk;dksa dks iz/;kid ?kkksf"kr fd;s tkus ds lEcU/k esa foLr`r fopkj foe'kZ gqvk rFkk fu.k;Z fy;k x;k fd iwoZ esa fy;s x;s fu.k;Z vHkh LFkfxr ekus tk;saA d`f"k lfop] m0 iz0 'kklu us crk;k fd bu izdj.kksa ij 'kklu ds Lrj ij rhuksa d`f"k fo'ofo|ky;ksa dh leL;kvksa dks ysdj xEHkhjrkiwoZd fopkj py jgk gS rFkk vk'kk O;Dr dh fd izdj.kksa ij vxyh CkSBd ds iwoZ dksbZ leqfpr fu.k;Z ys fy;k tk;sxkA"
Thus, from the above facts, what is manifest is that though in the 85th meeting of the Board of Management held on 13.03.1992 a decision was taken that the petitioners be declared/classified as teachers and they also be made available the benefit of U.G.C. pay scale of Rs.2200-4000, however, the said decision was never ratified; rather in the 86th meeting while considering the agenda relating to ratification of the decisions taken in the 85th meeting, it was decided to ratify all other decisions except the decision taken in respect of agenda item no.85:16 and 85:17 and it was further decided that legal opinion on the issue be obtained. In the 87th and 88th meetings the matter was again deliberated but no decision was taken, however, in the 89th meeting of the Board of Management held on 21.09.1993 it was clearly decided that the earlier decision taken in respect of declaration/classification of the Senior Research Assistants and Research Assistants as teachers shall stand deferred. In these background facts, what we find is that the decision declaring/classifying the petitioners as teachers was never finalized by the Board of Management.
Learned Single Judge while considering the aforesaid argument has observed that the fact that the decision of the Board of Management dated 13.03.1993 was not approved in the subsequent meeting of the Board of Management cannot be a ground for denial of benefits to the petitioners. Such finding, in our considered opinion, is not sustainable in the eye of law for the reason that the decision taken in 85th meeting of the Board of Management was never ratified in any of the subsequent meetings including the 86th meeting. Had the ratification of the decisions taken in 85th meeting was not considered in the subsequent meeting, it could not be said that the decision taken in the 85th meeting did not become final. However, in the instant case the decision taken in 85th meeting by the Board of Management classifying/declaring the petitioners as teachers was taken up and deliberated for ratification by the Board of Management in its 86th meeting where a conscious decision was taken to ratify all other decisions taken in the 85th meeting except the decision taken in respect of agenda item no.85:16 and 85:17. Thus, it is not a case where the decision taken in an earlier meeting was not considered for ratification in the subsequent meeting. It was rather considered and decided not to ratify the same.
The minutes of 85th meeting of the Board of Management held on 13.03.1992 and the 86th meeting held on 30.01.1993 were on record of the writ petition as enclosures with the counter affidavit filed by the University. The decision thus, taken by the Board of Management in its 86th meeting appears to have been lost sight of by the learned Single Judge while passing the judgment and order dated 19.02.2021 which is being assailed before us in the instant Appeal.
It is true that minutes of the 89th meeting of the Board of Management where a decision to defer the earlier decision taken in 85th meeting declaring Senior Research Assistants and Research Assistants as teachers was taken, were not on record of the writ petition, however, the minutes of 86th meeting held on 30.01.1993 were on record where the decision taken in the 85th meeting was clearly and explicitly not ratified/approved/affirmed.
The decision taken in the 86th meeting of the Board of Management held on 30.01.1993 has thus, clearly escaped the attention of the learned Single Judge. In view of the decision taken in the 86th meeting and subsequently in the 89th meeting of the Board of Management, it is not possible to infer or arrive at a conclusion that the petitioners were ever declared/classified as teachers as per the provisions contained in Chapter XII of the First Statutes.
In absence of declaration/classification of the petitioners as teachers, their claim for grant of U.G.C. pay scale of Rs.2200-4000/- admissible to the post of Assistant Professors/Lecturers with effect from 13.03.1992, in our considered opinion, was not tenable. It is in this background it appears that the State Government while issuing Government Order dated 18.02.2000 has modified the earlier order dated 22.07.1999 not only making available the benefit of the pay scale of Rs.2200-4000/- with effect from the date of issuance of the Government Order dated 22.07.1999 and not with effect from 13.03.1992 but also clearly directing that the nomenclature of the post of the petitioners be changed to Senior Research Assistants. The Government Order dated 18.02.2000 thus, appears to have been issued based on the fact that the petitioners were not recognized/treated/classified/declared as teachers (Assistant Professors or Lecturers). The said decision of the State Government appears to be in conformity with the decision of the Board of the Management taken in its 86th meeting.
If the decision of the Board of Management taken in its 85th and 86th meeting are read together i.e. in conjunction with each other, what we find is that their classification/declaration as teachers cannot be said to be conclusive or final for the reason that the decision of 85th meeting was not ratified in the 86th meeting or any subsequent meeting. It has even been deferred as per the decision taken by the Board of Management in its 89th meeting held on 21.09.1993.
A reading of the judgment dated 19.02.2021 passed by the learned Single Judge which is under appeal herein reveals that after noticing the submissions made on behalf of the respective parties the provisions of Chapter XII of the First Statutes have been extracted and it has been opined by the learned Single Judge that the order impugned therein, dated 18.02.2000 does not record reasons as to why the petitioners shall be paid salary with effect from the date of issuance of the Government Order. It has also been recorded by the learned Single Judge that once by following the procedure prescribed by the Statutes the designation of Teacher/Assistant Professor was granted to the petitioners, however, without assigning cogent reason such benefit could not be withdrawn by issuing subsequent Government Order.
The fallacy, which we notice, in the said findings recorded by the learned Single Judge is that the decision to declare the petitioners or classify them as teachers by the Board of Management was never ratified; rather in the 86th meeting the Board of Management clearly and consciously did not ratify the said decision by recording that all decisions taken in 85th meeting were ratified except the decisions taken at the agenda item nos.85:16 and 85:17. This aspect of the matter thus appears to have been missed by the learned Single Judge and hence no consideration in this regard appears to be available in the judgment and order under appeal.
We may also notice that the Board of Management in its 92nd meeting held on 05.09.1994 decided to make available the pay scale of Rs.1740-3000/- to the incumbents holding the post of Senior Research Associate/Research Assistant and other equivalent posts. The State Government by means of the order dated 14.10.1993 also directed that the incumbent holding the post of Senior Research Associate/Research Assistant/Extension Assistant who were appointed in the pay scale of Rs.570-900 after 06.06.1981 shall be made available the revised pay scale of Rs.1740-3000/- Though this decision appears to have been challenged by the petitioner by filing the Writ Petition No.108 (S/B) of 1995, however, without adjudication of the issue the said writ petition was dismissed as not pressed vide order dated 03.03.2000.
It is worth noticing that by issuing Government Order dated 18.02.2000 the petitioners have been provided the promotional pay scale of Rs.2200-4000 with effect from 22.07.1999. The said Government Order dated 18.02.2000 thus does not make available the benefit of pay scale of Rs.2200-4000/- to the petitioners in their capacity of teachers (Assistant Professors/Lecturers), rather it provides promotional pay scale i.e. higher scale of pay than what the petitioners while working as Senior Research Associates were getting. Accordingly, the nomenclature of the post was also directed to be changed from Senior Research Associate to the Senior Research Assistant. These aspects of the matter thus appear to have been missed out by the learned Single Judge while adjudicating the validity of the Government Order dated 18.02.2000.
The most relevant aspect of the matter which ought to have been taken into consideration by the learned Single Judge is as to whether the petitioners stood classified/declared as teachers. However, without taking into account the decision taken by the Board of Management in its 86th meeting learned Single Judge has relied upon the decision taken in 85th meeting and has thus given a finding that once the petitioners were declared teachers in the meeting of the Board of Management held on 03.03.1992, they were entitled to be given the pay scale of Rs.2200-4000/- as is admissible to a teacher (Lecturer/Assistant Professor) from the said date and hence the earlier Government Order dated 22.07.1999 was rightly issued.
The fallacy in the said reasoning lies in ignoring the decision of the Board of Management taken in its 86th meeting held on 30.01.1993 whereby the decision taken in the 85th meeting was consciously not ratified.
For the reasons given and discussion made above, in our final analysis we do not find ourselves in agreement with the judgment and order dated 19.02.2021 passed by the leaned Single Judge which is under appeal before us.
The special appeal is, thus, allowed.
The judgment and order dated 19.02.2021 passed by the learned Single Judge in Writ Petition No.327 (S/B) of 2000 is hereby set aside.
However, having regard to the overall facts and circumstances of the case we direct that no recovery or adjustment of any amount from the respondent nos.1 to 19/petitioners shall be made if they have been paid their salaries/emoluments in terms of the earlier Government Order dated 22.07.1999. Having directed as above for not making any recovery or adjustment of any amount from the petitioners, we also direct that the petitioners shall be treated to have been working on the post of Senior Research Assistants and not on the post of Teacher (Lecturer/Assistant Professor) but they shall be continued to be paid salary in the pay scale of Rs.2200-4000/- with the benefit of revision of pay scales which might have been effected from time to time till date or which may be effected in future.
There will be no order as to costs.
Order Date :- 21.03.2022
akhilesh/
[Ajai Kumar Srivastava-I, J.] [D. K. Upadhyaya, J.]