Allahabad High Court
Dr. Kamal Jaiswal vs Union Of India Thru. Secy. Ministry Of ... on 1 May, 2017
Bench: Amreshwar Pratap Sahi, Sanjay Harkauli
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No. - 20 Case :- MISC. BENCH No. - 3698 of 2017 Petitioner :- Dr. Kamal Jaiswal Respondent :- Union Of India Thru. Secy. Ministry Of H.R.D. & Others Counsel for Petitioner :- Amit Bose,Nilesh Gupta Counsel for Respondent :- Rajesh Tewari,A.S.G.,Prashant Singh Atal,Sameer Kalia,Y.S.Lohit Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Sanjay Harkauli,J.
This petition has been filed by a Professor of Babasaheb Bhimrao Ambedkar University, Lucknow contending that the occupancy of the office of Registrar by the respondent No.5 is unlawful, and therefore a writ of quo warranto should be issued ousting her from the office as her selection and appointment is contrary to the Statutes and Ordinances of the Babasaheb Bhimrao Ambedkar Univeristy Act, 1994.
The petitioner was working as a Deputy Registrar on a substantive post in the Banaras Hindu University. She applied for being appointed as a Registrar in the Babasaheb Bhimrao Ambedkar University and was accordingly selected and appointed on a tenure basis. The bone of contention is based on the allegation that the respondent No.5 who has been appointed as the Registrar was offered a tenure appointment, and not on deputation whereas after having been selected and offered an appointment, her engagement in the University was manipulated on deputation, as such the same being contrary to Rules, a writ of quo warranto be issued as she unlawfully continues to occupy the said office. It is also urged that it is not only the engagement on deputation that is unlawful, but it's continuance and extension under the impugned extension order of deputation by the Banaras Hindu University is contrary to law, hence the relief prayed for deserves to be granted.
There are certain undisputed facts, and therefore it would be appropriate to set-out the same before this Court proceeds to deal with the arguments advanced on the issues raised in this petition. The post of a Registrar is that of an Officer of the University as defined under Section 10 (5) of the 1994 Act. The same is extracted hereunder:-
"10. The following shall be the officers of the University:-
(1) the Chancellor;
(2) the Vice-Chancellor;
(3) the Pro-Vice-Chancellors;
(4) the Deans of Schools;
(5) the Registrar;
(6) the Finance Officer; and (7) such other officers as may be declared by the Statutes to be officers of the University."
The Registrar is appointed as per the Statutes of the University framed under Section 27 of the 1994 Act and contained in the second Schedule. Clause 5 of the second Schedule prescribes the mode of appointment of the Registrar. The same is extracted hereunder:-
"Registrar
5. (1) The Registrar shall be appointed by the Board of Management on the recommendation of a Selection Committee constituted for the purpose and shall be a whole-time salaried officer of the University.
(2) He shall be appointed for a term of five years and shall be eligible for reappointment.
(3) The emoluments and other terms and conditions of service of the Registrar shall be such as may be prescribed by the Ordinances:
Provided that the Registrar shall retire on attaining the age of sixty two years. Provided further that a Registrar shall, notwithstanding his attaining the age of sixty two years, continue in office until his successor is appointed and enters upon his office or until the expiry of a period of one year, whichever is earlier. (4) When the office of the Registrar is vacant or when the Registrar is, by reason of illness, absence or any other cause unable to perform the duties of his office, the duties of the office shall be performed by such person as the Vice-Chancellor may appoint for the purpose. (5) (a) The Registrar shall have power to take disciplinary action against such of the employees, excluding teachers and academic staff, as may be specified in the order of the Board of Management and to suspend them pending inquiry, to administer warnings to them or to impose on them the penalty of censure or the withholding of increment:
Provided that no such penalty shall be imposed unless the person concerned has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
(b) An appeal shall lie to the Vice-Chancellor against any order of the Registrar imposing any of the penalties specified in sub-clause (a).
(c) In a case where the inquiry discloses that a punishment beyond the power of the Registrar is called for, the Registrar shall, upon conclusion of the inquiry, make a report to the Vice-Chancellor along with his recommendations:
Provided that an appeal shall lie to the Board of Management against an order of the Vice-Chancellor imposing any penalty. (6) The Registrar shall be ex officio Secretary of the Board of Management, the Academic Council and the Planning Board, but shall not be deemed to be a member of any of these authorities. (7) It shall be the duty of the Registrar--
(a) to be the custodian of the records, the common seal and such other property of the University as the Board of Management shall commit to his charges;
(b) to issue all notices convening meeting of the Board of Management, the Academic Council, the Planning Board and of any, Committees appointed by those authorities;
(c) to keep the minutes of all the meetings of the Board of Management, the Academic Council, the Planning Board and of any Committees appointed by those authorities;
(d) to conduct the official correspondence of the Board of Management, the Academic Council, and the Planning Board;
(e) to arrange for and superintend the examination of the University in accordance with the manner prescribed by the Ordinances;
(f) to supply to the Visitor copies of the agenda of the meetings of the authorities of the University as soon as they are issued and the minutes of such meetings;
(g) to represent the University in suits or proceedings by or against the University, sign powers-of-attorney and verify pleadings or depute his representative for the purpose; and
(h) to perform such other duties as may be specified in the Statutes, the Ordinances or the Regulations or as may be required, from time to time, by the Board of Management or the Vice-Chancellor."
The University under the Statutes has the power to appoint an Officer for a fixed tenure and as indicated above, the Registrar has to be appointed for a term of five years with a future eligibility of re-appointment. The selection is through a Selection Committee. Statute - 20 is extracted hereunder:-
Selection Committees
20. (1) There shall be Selection Committees for making recommendations to the Board of Management for appointment to the posts of Professor, Reader, Lecturer, Registrar, Finance Officer, Librarian and Principals of Colleges and Institutions maintained by the University.
(2) The Selection Committee for appointment to the posts specified in column 1 of the Table below shall consist of the Vice-Chancellor, Pro-Vice-Chancellor, a nominee of the Visitor and the persons specified in the corresponding entry in column 2 of the said Table:
TABLE
-----------------------------------------------------------------------
1 2
-----------------------------------------------------------------------
Professor ... ... ... Reader/Lecturer ... ... ... Registrar, Finance Officer (i) Two members of the Board of Management nominated by it. (ii) One person not in the service of the University nominated by the Board of Management. Librarian ... ... ... Principal of College or Institution maintained by the University ... ... ..."
This appointment is to be made by the Board of Management for a fixed tenure as is provided for in Statute - 22 which is extracted hereunder:-
"22. The Board of Management may appoint a person selected in accordance with the procedure laid down in the Statute 20 for a fixed tenure on such terms and conditions as it deems fit."
Thus, the appointment is not an appointment on deputation but is a tenure appointment under the aforesaid process.
An advertisement was issued for appointment on the post of Registrar, a copy whereof has been filed with the short counter affidavit filed on behalf of the University through Sri Anand Kumar Maurya. The Advertisement clearly prescribes the conditions under which the appointment is to be made. Advertisement No.1/2013 dated 28.6.2013 is for non-teaching posts with a stipulation that it shall be subject to Ministry of Human Resource Department and U.G.C. Regulations framed from time to time. The same specifically prescribes the post to be a 'tenure post' for five years. The relevant part of the advertisement is extracted hereunder:-
1Registrar - 1 (tenure post for 5 years) Rs.37400-67000 + GP - 10000 UR PG with at least 55% marks or its equivalent grade of B in the UGC seven point scale. (55% shall not be insisted for the candidates already working in the University system) AND at least 15 years' of experience as Assistant Professor in the AGP of Rs.7000 and above or with 8 years' of service in the AGP of Rs.8000 and above including as Associate Professor along with experience in educational administration OR Comparable experience in research establishment and/or other institutions of higher education.
OR 15 years of Administrative experience of which 8 years as Deputy Registrar or an equivalent post.
Desirable: Ph.D. with knowledge of working in computerized environment.
Age limit: 57 years 3 Finance Officer - 1 (Tenure post for 5 years) in the pay band of Rs.37400 -67000 + GP - Rs.10000/-
...
... ... ...
... ...
4
Controller of Examination - 1 (Tenure post for 5 years in the pay band of Rs.37,400 - 67000 + Grade Pay Rs.10,000/ ...
... ... ...
5Inter Audit Officer - 1 (On Deputation basis) Pay Band Rs.15600 - 39100 + GP - 7600 ...
... ... ...
What is noticeable in the said advertisement is that there are several posts advertised including that of Finance Officer which is also indicated as a 'tenure post' for 5 years and similar is the status of Controller of Examination. However, at Sl. No.5, the post of Internal Audit Officer has been described as on deputation basis. Thus, the posts that were to be filled on 'tenure basis' and 'deputation basis' have been separately indicated in the advertisement. The post of Registrar has not been indicated to be filled up by way of deputation. The terms and conditions of the advertisement described as General Instructions and Essential Information are contained at the tail end of the advertisement. Clauses 20 and 21 are important to understand the significance of the word 'deputation' in the context in which the present arguments have been advanced. They are extracted hereunder:-
"20. Those already in Govt. service should forward their applications through proper channel or produce NOC at the time of interview.
21. In case of the post to be filled through deputation, ACRs/APARs for last 5 years duly attested and Integrity Certificate be sent in sealed confidential cover addressed to the Registrar by the concerned employer, failing which the candidature, may not be considered."
It is undisputed that the Board of Management in it's 46th meeting held on 20.11.2013 approved the proposal of the respondent No.5 having been selected on the said post for appointment after recommendation as per rules above on the post of Registrar for a 5 year term. The said resolution as contained against Agenda No.46.2 is extracted hereunder:-
"Agenda Item No.46.2: To consider and approve the recommendation of Selection Committee for the post of Registrar.
The University had advertised the post of Registrar vide Advertisement No.01/Recruitment/ Non-Teaching/2013 on 28.6.2013 and 47 (including 04 late) applications were received for the post. The applications were screened by a Committee comprising of 1. Prof. Abdul Wahid, V.C., 2. Dr. Dev Swarup, VC., 3. Registrar, Delhi University, 4. Registrar, JNU, Delhi, 5. Prof. S. K. Bhatnagar, 6.Prof. N.M.P. Verma, 7. Prof. D. P. Singh and 8. Prof. K.L. Mahawar and 16 eligible and 27 ineligible candidates were found. The list of eligible and ineligible was uploaded on the University website on 17.9.2013 by inviting comments from the candidates upto 25.9.2013. The representations of 02 candidates were received regarding their eligibility. The same were considered by committee and their representations were rejected by the Committee. The recommendations of the committee were also uploaded in the University website on 22.10.2013. In view of this, 16 eligible candidates were called for interview and the interview for the post of Registrar was held on 1st November, 2013 and 14 candidates appeared out of 16 candidates before the selection committee comprising of 1. Vice Chancellor, Chairman, 2. Shri Kamal Kishor, BOM Member, 3.Shri A. K. Singh, BOM Member, 4. Shri G. K. Chaddha (nominated by BOM). Recommendations of the selection committee to be placed on the table.
Resolution The sealed envelope containing the recommendations of the Selection Committee for the post of Registrar was opened and it was resolved to approve the recommendation of the Selection Committee for appointment of Dr. Sunita Chandra on the post of Registrar for five years term."
The letter of appointment was issued on 21.11.2013 and the same is extracted hereunder:-
"ckcklkgsc Hkhejko vEcsMdj fo'ofo|ky;
fo|k fogkj] jk;cjsyh jksM] y[kuÅ & 226 025 Babasaheb Bhimrao Ambedkar University (A Central University) Vidya Vihar, Raebareli Road, Lucknow - 226 025 Letter No.2181/BBAU/13 Date: 21/11/2013 Appointment Order As per approval of the Board of Management in its 46th meeting, held on 20th November, 2013, the Vice Chancellor is pleased to appoint Dr. Sunita Chandra, Deputy Registrar, Banaras Hindu University, Varanasi as Registrar in the pay band of Rs.37400-67000 + GP Rs.10000/- for a term of five years from the date of her joining in the University. She may join duties within a period of one month from the date of issue of this order, failing which the appointment order may be cancelled. She is required to submit two copies of passport size photograph alongwith attested copies of educational/experience certificates and relieving order alongwith vigilance clearance certificate issued from her parent organization to the University at the time of joining her duties.
Her pay fixation shall be made as per Govt. of India Rules. She is advised to intimate acceptance of this appointment order by return of post/fax.
Sd/-
(Prof. R. B. Ram) Registrar (offg.) Dr. Sunit Chandra Deputy Registrar Banaras Hindu University Varanasi - 221 005 Copy forwarded for information and necessary action to:
1. Secretary, Ministry of Human Resource Development, Shastri Bhawan, Rafi Marg, New Delhi - 110 001.
2. Secretary, University Grants Commission, Bahadurshah Zafar Marg, New Delhi-110 002.
3. Registrar, Banaras Hindu University, Varanasi.
4. Personal File
5. Guard File/University website (Prof. R. B. Ram) Registrar (offg.)"
The respondent No.5, on receipt of this letter of appointment, accepted the offer of appointment on 25.11.2013 which has been recorded in the resolution of the Board of Management dated 21.12.2013.
The respondent No.5 appears to have written a letter thereafter to her parent employer/Banaras Hindu University on 26.11.2013 making a request for relieving her on deputation for five years so as to enable her to join the post of Registrar in the Ambedkar University.
It is at this juncture that the dispute as raised gives rise to this petition contending that once the appointment had been made and accepted as a tenure appointment for five years, then the respondent No.5 could not have made any request for being appointed on deputation nor was the post advertised for being appointed by way of deputation. The letter dated 26.11.2013 has been filed as Annexure - 9 to the short counter affidavit. The same was responded to by the Banaras Hindu University arrayed as a respondent in the present writ petition informing the Registrar of the Ambedkar University that a request has been received from the respondent No.5 for relieving her on the terms of deputation for a period of five years. A request was therefore made to the Ambedkar University to give a consent for relieving the respondent No.5 on deputation. The Ambedkar University in response thereto sent a letter on 9.12.2013 to the Banaras Hindu University that it has no objection for the joining of the respondent No.5 as Registrar on deputation basis on standards terms and conditions of the Government of India Rules. The said intimation of consent is Annexure - 11 to the short counter affidavit and is extracted hereunder:-
"ckcklkgsc Hkhejko vEcsMdj fo'ofo|ky;
¼dsUnzh; fo'ofo|ky;½ fo|k fogkj] jk;cjsyh jksM] y[kuÅ & 226 025 Babasaheb Bhimrao Ambedkar University (A Central University) Vidya Vihar, Raebareli Road, Lucknow - 226 025 Ph:0522-2440822 Fax: 2444888 Ref No.2359/BBAU/13 Date: 09/12/2013 To Registrar, Banaras Hindu University, Varanasi - 221 005 Sub : Appointment of Dr. (Mrs.) Sunita Chandra, Deputy Registrar, BHU to the post of Registrar at BBAU, Lucknow - reg.
Sir, Please refer to the letter No.AB/2-A-10/38286 dated 03.12.2013 on the subject noted above.
In this regard, it is to inform you that the University has no objection for joining of Dr. Sunita Chandra as Registrar of the University on deputation basis on standard terms & conditions of the Govt. of India Rules.
Yours faithfully, Sd/-
Registrar Copy to:
Dr. (Mrs.) Sunita Chandra, Deputy Registrar, BHU, Varanasi - 221 005.
Registrar"
The Ambedkar University however issued a differently worded letter to the respondent No.5 informing her that her request for joining the University on deputation basis shall be placed before the Board of Management on 21.12.2013 and therefore she was permitted to join the University as Registrar on deputation basis after intimation from the University in this regard. The letter dated 16.12.2013 is extracted hereunder:-
"ckcklkgsc Hkhejko vEcsMdj fo'ofo|ky;
fo|k fogkj] jk;cjsyh jksM] y[kuÅ & 226 025 Babasaheb Bhimrao Ambedkar University (A Central University) Vidya Vihar, Raebareli Road, Lucknow - 226 025 Letter No.2446/BBAU/13 Date: 16/12/2013 Dr. (Mrs.) Sunita Chandra Deputy Registrar Banaras Hindu University Varanasi Sub : Appointment to the post of Registrar, BBA University-reg.
Ref.: 1. Our letters no.2181/BBAU/13, dated 21.11.2013 an359/BBAU/13, dated 09.12.13.
2. Letter No.AB/2-A-100/38286, dated 03.12.2013 from Registrar, BBAU.
Madam, With reference to above mentioned letters on the subject cited above, I have been directed to inform that your request for joining the University as Registrar on deputation basis will be placed before the Board of Management in its meeting to be held on 21st Dec. 2013. Therefore, you may join the University as Registrar on deputation basis after the intimation from the University in this regard.
Yours sincerely, Sd/-
(Registrar) Copy to: Registrar, BHU, Varanasi, for information."
Simultaneously, the Finance Officer sent a note to the Vice-Chancellor of the University on 16.12.2013 itself that there is no provision made in the Act and Statutes for allowing joining on deputation basis in the University in the context of the respondent No.5. The Board of Management held it's 47th meeting on 21.12.2013 and a resolution was passed being resolution No.47.2 to consider the request of respondent No.5 to allow her to join on the post on deputation basis. The resolution is extracted hereunder:-
"Agenda To consider the request of Dr. Sunita Item No.47.2: Chandra (Registrar appointed) to allow her to join on the post of deputation basis.
The Board of Management in its 46th meeting held on 20th November 2013 approved the appointment of Dr. Sunita Chandra on the post of Registrar for five years term on the recommendation of selection Committee.
The appointment order was issued to Dr. Sunita Chandra vide letter no.2181/BBAU/13 dated 21.11.2013 to join within a month's time. In this regard, she has accepted the offer of appointment vide her letter dated 25.11.2013.
However, Registrar, BHU vide his letter dated 3.12.2013 informed the University that she can be relieved on the basis of deputation to join the University on standard terms and conditions of Government of India Annexure - 47-B. In this regard, Shri D. Jayabalachandran, Finance Officer has sent a note dated 16.12.2013 to the Vice Chancellor that there is no provision made in the Act and Statute for joining on any Statutory Post on deputation basis in the University. A copy of the same is placed as Annexure - 47-B1.
In view of the above, it is to point out that such practice has already been followed in the University in the past also. Previously, Shri S. C. Bajpai & Dr. U. S. Rawat the then Registrars were also joined this University on deputation. The matter is placed for consideration.
Resolution It was resolved to allow Dr. Sunita Chandra to join on the post of Registrar immediately. After joining she may approach MHRD for deputation etc."
The resolution categorically states to allow the respondent No.5 to join on the post immediately and after joining she may approach the Ministry of Human Resource Development for deputation etc. The aforesaid resolution was presumably in tune with the intimation dated 9.12.2013 extracted here-in-above indicating the terms and conditions of the Government of India Rules.
After the aforesaid Resolution was passed, the Banaras Hindu University informed the respondent No.5 vide letter dated 22.1.2014 that the sanction of deputation by the Banaras Hindu University has been extended for three years to the respondent No.5 to join as Registrar at the Ambedkar University w.e.f. 24.1.2014. The same is extracted hereunder:-
"dkk'kh fgUn` fo'ofo|ky; dqylfpo dk;kZy;
iz'kklu f'k{k.k Banaras Hindu University Office of the Registrar An institution of National Importance established by an Act of Parliament Admin. Teaching Ref No.AB/2-A-100/ Dated: 22.01.2014 Dr. (Mrs.) Sunita Chandra Deputy Registrar Instt. of Agricultural Sciences, Banaras Hindu University, Ref: Letter No. AB/2-A-100/40061-072, dated 16.12.2013 and Letter No.AB/2-A-100/ 40820-822, dated 20.12.2013.
Madam, With reference to your letter dated 20.01.2014, I am directed to inform you that you have been sanctioned deputation for three years to join as Registrar, Babasaheb Bhimrao Ambedkar University, Lucknow with effect from 24.01.2014 and you will be relieved with effect from 23.01.2014 (AN) to join the above post on the standard terms and conditions of the deputation.
Yours Faithfully, Dy. Registrar (Admn. Teaching) No.AB/2-A-100/ of date Copy forwarded for information & necessary action to:
1. The Registrar, Babasaheb Bhimrao Ambedkar University, Vidya Vihar, Rae Bareli Road, Lucknow - 226 005.
2. The Finance Officer, BHU.
3. The Director, Instt. Agricultural Sciences, BHU.
4. The Dy. Registrar, (Accounts - I), BHU.
5. The Dy. Registrar and Sec. to Vice-Chancellor, BHU.
6. The Dy. Registrar, RAC, BHU.
7. The Dy. Registrar, Estates, BHU.
8. The In-charge, E.D. Cell, R.O. Finance, BHU
9. The P.S. to the Registrar, BHU.
Dy. Registrar (Admin. Teaching)"
The respondent No.5 joined on the said post and a notification was issued by the Ambedkar University on 24.1.2014 which is extracted hereunder:-
"ckcklkgsc Hkhejko vEcsMdj fo'ofo|ky;
fo|k fogkj] jk;cjsyh jksM] y[kuÅ & 226 025 Babasaheb Bhimrao Ambedkar University (A Central University) Vidya Vihar, Raebareli Road, Lucknow - 226 025 Letter No.2780/BBAU/14 Date: 24/01/2014 NOTIFICATION The competent authority is pleased to accept the joining of Dr. Sunita Chandra as Registrar of the University in the Pay Band of Rs.37,400-67,000 plus Grade Pay Rs.10,000/- for the term of five years or 62 years of age, whichever is earlier with effect from 24.01.2014 (F/N).
In pursuance of the above, Dr. Sunita Chandra has joined to the post of Registrar of the University on 24.01.2014 (F/N).
Sd/-
Deputy Registrar (Estt.) Dr. Sunita Chandra, Registrar, BBA University, Lucknow Copy to:
1. All Members, Board of Management, All Statutory Committees and Councils, BBAU, Lucknow.
2. Accountant General (Audit), U.P. Allahabad.
3. Secretary, Govt. of India, Shastri Bhawan, New Delhi.
4. Secretary, University Grants Commission, New Delhi.
5. Registrar, Banaras Hindu University, Varanasi.
6. Deans/ Heads/ Coordinators/ Sectional Heads, Schools/Departments/Centres/Cells of BBAU, Lucknow.
7. Finance Officer, BBAU, Lucknow.
8. Controller of Examination, BBAU, Lucknow.
9. University Website.
Deputy Registrar (Estt.)"
The aforesaid notification however does not mention about the joining on deputation by the respondent No.5. The respondent No.5, in her short counter affidavit, has filed a document dated 22.9.2014 which is Annexure - 17 to the said affidavit intimating the Secretary of the Department of Higher Education, Ministry of Human Resource Development, Government of India about having been selected and appointed on the general terms and conditions which according to her were noted by the Board of Management in the meeting held on 9.4.2014.
The Minutes of the meeting dated 9.4.2014 at Agenda No. 48.2 insofar as it relates to confirmation of the Minutes dated 21.12.2013 are extracted hereunder:-
Agenda Item No.48.2: Confirmation of minutes of 47th Meeting of the Board of Management held on 21.12.2013 and the action taken thereon.
Agenda Item No.47.2: To consider the request of Dr. Sunita Chandra (Registrar appointed) to allow her to join on the post of deputation basis.
The Board of Management in its 46th meeting held on 20th November 2013 approved the appointment of Dr. Sunita Chandra on the post of Registrar for five years term on the recommendation of selection Committee. The appointment order was issued to Dr. Sunita Chandra vide letter no.2181/BBAU/13 dated 21.11.2013 to join within a month's time. In this regard, she has accepted the offer of appointment vide her letter dated 25.11.2013. However, Registrar, BHU vide his letter dated 3.12.2013 informed the University that she can be relieved on the basis of deputation to join the University on standard terms and conditions of Government of India Annexure - 47-B. In this regard, Shri D. Jayabalachandran, Finance Officer has sent a note dated 16.12.2013 to the Vice Chancellor that there is no provision made in the Act and Statute for joining on any Statutory Post on deputation basis in the University. A copy of the same is placed as Annexure - 47-B1. In view of the above, it is to point out that such practice has already been followed in the University in the past also. Previously, Shri S. C. Bajpai & Dr. U. S. Rawat the then Registrars were also joined this University on deputation. The matter is placed for consideration. Resolution It was resolved to allow Dr. Sunita Chandra to join on the post of Registrar immediately. After joining she may approach MHRD for deputation etc. Action Taken Report Based on the letter of relieving received from BHU stating the relieving of Dr. Sunita Chandra for three years on deputation w.e.f. 23.01.2014, her joining on the post of Registrar was accepted w.e.f. 24.01.2014 on deputation, and MHRD is being intimated accordingly."
It appears that the earlier resolution dated 21.12.2013 was quoted, whereafter an Action Taken Report was mentioned as highlighted above indicating the respondent No.5 having been relieved for three years and joining on the post of Registrar that was accepted on 24.1.2014 on deputation and the same was being intimated accordingly to the Ministry of Human Resource Department.
The respondent No.5 thereafter continued to discharge her duties as Registrar of the Ambedkar University and when her three years deputation period was about to come to an end, she moved an application before the Banaras Hindu University/her parent employer on 16.12.2016 requesting the University to extend the deputation period for another two years. The BHU vide letter dated 23.1.2017 intimated the respondent No.5 about the same indicating the extension of two years from 24.1.2017 to 23.1.2019.
A direction is said to have been issued by the Vice-Chancellor about the said extension of the deputation of the respondent No.5 to be placed in the meeting of the Board of Management as a reporting item. This noting is a bone of contention as to whether it had been issued and as to whether the letters that were received from the BHU dated 23.1.2017 and whether the Vice-Chancellor had been fully made aware of. We had therefore called upon him to file an affidavit that has been placed on record, where a stand has been taken explaining the endorsements made in the letters referred to in the affidavit.
At this stage, suffice it to say that the Finance Officer of Ambedkar University wrote a letter to the Registrar of the Banaras Hindu University on 16.1.2017 informing the authority that in view of the provisions referred to therein and the audit observations made in relation to her service conditions, the transformation of the status of the service of the respondent No.5 from tenure appointment to an appointment on deputation was not in accordance with any guidelines and she had not been appointed on deputation, even though she had been relieved by the BHU on deputation to join the post as Registrar of Ambedkar University. The Finance Officer accordingly suggested for taking disciplinary action against the respondent No.5 for having attained pecuniary advantages, and on the ground that she was not on deputation.
It is based on such correspondence that the present writ petition was filed and on a prima facie satisfaction, this Court passed an interim order on 20.2.2017 restraining the respondent No.5 from discharging her duties on the post of Registrar of the Ambedkar University.
The dispute that had arisen on account of certain documents having been filed was noticed by the Bench in it's order dated 6.3.2017 and is recorded as under:-
"Heard learned counsel for the petitioner. Shri N.K. Singh, holding brief for Shri Prashant Singh 'Atal', learned counsel for the first respondent.
The arguments on behalf of the respondent no.5 have been concluded by Shri Kalia and during the course of the arguments, the issue of the correctness of the notification dated 31.1.2017 had been raised on account of the stand taken by the University in the supplementary affidavit filed by the Officiating Registrar on 2.3.2017 where it has been stated that the Vice Chancellor had not given any direction for the issuance of the said notification to the concerned Assistant Registrar, Mr. Gokaran Prasad for placing the matter before the Board of Management.
The University has relied on the letter dated 23.1.2017 received from the Banaras Hindu University in the Registrar office on the same date, copy whereof has been filed as Annexure-1 to the supplementary affidavit of the University which bears an endorsement of the Registrar placing it before the Vice Chancellor on 23.1.2017 itself. However, the order passed by the Vice Chancellor to put up the said letter along with the request letter of the respondent no.5 dated 16.12.2016 is 30.1.2017. Thus, there is an endorsement by the Vice Chancellor calling upon the placement of the letter dated 16.12.2016 before him which according to him was never placed before.
On the other hand, Shri Kalia, learned Senior counsel for the respondent no.5 has invited attention of the Court to Annexure-19 of the short counter affidavit filed on behalf of the respondent no.5 which is at page 179 of the said affidavit, to urge that there was a clear direction of the Vice Chancellor himself to place the said letter of granting extension to respondent no.5 before the Board of Management. The said document bears an endorsement dated 24.1.2017 said to have been signed by the Vice Chancellor himself.
The comparison of these two documents therefore brings to the fore the issue as to whether the Vice Chancellor had issued any directions for issuance of the notification dated 31.1.2017 or not as claimed by the respondent no.5. In the wake of the affidavit filed on behalf of the University, it is necessary now for the Vice Chancellor to file his personal affidavit about the endorsement made in Annexure-19 to the short counter affidavit filed on behalf of the respondent no.5 to ascertain whether he had issued directions for placing the matter before the Board or not.
Shri Kalia has further pointed out that the subsequent affidavit which has been filed by the University mentions that the earlier affidavits appears to be without the permission of the Vice Chancellor. He submits that this contradictory stand also deserves to be explained by the Vice Chancellor.
Shri Kalia has urged that on account of the restraint order passed by this Court, the respondent no.5 is neither able to discharge her duties not is she able to get leave or even apply for it.
Let the affidavit of the Vice Chancellor be filed by the date fixed.
The question of leave as from the date of the passing of the interim order of this court till any further orders are passed would be considered on 21.3.2017 or whenever the matter is heard next.
The Court is informed that the Vice Chancellor is abroad at the moment and would be arriving shortly, but on account of the intervening Holi vacations, the matter can now be taken up only after the vacations i.e. 21.3.2017.
Put up on 23.3.2017."
It is thereafter that the affidavit of the Vice-Chancellor has been brought on record and response to the same has been filed by way of affidavits by the respective parties.
When the arguments had concluded on the last date of hearing, two documents had been placed before us - one by Sri Prashant Singh 'Atal' on behalf of the Union of India dated 1.3.2017, which is extracted hereunder:-
"F.No.38-2/2017-CU.V Government of India Ministry of Human Resource Development Department of Higher Education Shastri Bhawan, New Delhi Dated: 01.03.2017 To Sh. Prashant Singh "Atal"
Advocate, High Court, Senior Central Government Counsel, High Court, Lucknow.
Subject: For para-wise comment and instructions for filing Counter Affidavit in W.P. Petition no.3698/2017 (M/B) "Dr. Kamal Jaiswal Versus Union of India & Ors."
Sir, I am directed to refer to your letter dated 28.02.2017 on the subject cited above.
2. In the above context, it is stated that the present Registrar is not the First Registrar of the university whose appointment is made as per the Transitional Provisions provided under Section 42 of the BBAU Act according to which Visitor is the appointing authority to whom the proposal is referred to by the Ministry.
3. The appointment of present Registrar of the university has been made by the Board of Management on the recommendations of a Selection Committee constituted for the purpose as per provisions made under Statute 5 (1) of the BBAU Act.
4. The Ministry has no role to play in the matter relating to the appointment of the present Registrar. As per Statute 5 (3) of the BBAU Act, the emoluments and other terms & conditions of service of the Registrar are to be governed according to the provisions made in the Ordinances of the University.
Yours faithfully, Sd/-
(Surat Singh) Deputy Secretary to the Government of India Tel:011-23381695"
Sri Rajesh Tiwari, learned Counsel for the Ambedkar University has placed his submissions on the query raised by us on the status of continuance of the respondent No.5 which is as follows:-
"BABASAHEB BHIMRAO AMBEDKAR UNIVERSITY (A Central University) Vidya Vihar, Raebareli Road, Lucknow - 226 025 Ph.0522-2440822 Fax: 2441888 E-mail: [email protected] To Shri Rajesh Tiwari University Counsel Sir, This has reference to query raised by the Hon'ble High Court on dated 26.04.2017 in the case no.3698 (M/B) 2017. As per direction given by the Vice Chancellor, you are requested to reply as under: "Her (respondent no.5) work and conduct is not in the interest of the University, but matter is left to the verdict of Hon'ble High Court."
Sd/-
REGISTRAR 26.04.2017"
Sri Amit Bose, learned Counsel for the petitioner has urged that since it is now admitted that the respondent No.5 was not appointed on deputation, then her joining on deputation and continuance was impermissible. He contends that even the University under the Statutes and Ordinances is not conferred with the authority to appoint a Registrar on deputation and it is for this reason that the post was not even advertised for being filled up by way of deputation. He submits that any past practice which is being made the basis of any such justification of appointing Registrars on deputation would not validate an unlawful appointment. The contention is that the initial selection and the offer of appointment to the respondent No.5 on 21.11.2013 was not for appointment on deputation. Sri Bose therefore submits that upto this stage, there arose no occasion to question either the eligibility or the offer of appointment and if the petitioner had been appointed plainly on the terms originally offered her contract for five years of tenure appointment could not be faulted with.
He however submits that the moment this mode of engagement was converted to one by way of deputation, a completely foreign element alien to the offer of appointment of respondent No.5 as Registrar in Ambedkar University under the Statutes, Ordinances and the advertisement, amounted to adopting an illegal mode of engaging the respondent No.5 and this dimension relating to her engagement being unlawful, her acceptance of joining on deputation clearly amounts to an usurpation of office by the respondent No.5. This introduction of an alien element of mode of engagement allowing her to join on deputation is virtually converting the appointment on deputation which was neither intended nor is permissible in law.
In this background, it is urged that the respondent No.5 has been allowed to enter employment on a completely unlawful ground, and therefore a writ of quo warranto would lie to that effect. He even otherwise submits that this would amount to violation of Articles 14 and 16 of the Constitution of India vis-a-vis equality in matters of employment, inasmuch as had the advertisement indicated that the appointment was possible also by way of deputation, there was every likelihood that a large number of other candidates would have applied who were otherwise deprived of availing of this opportunity. Thus indirectly the respondent No.5 with the aid of this method has achieved that could not be attempted directly.
Sri Bose then submitted that such an engagement is otherwise also violative of the principles of deputation that require a tripartite commitment and consent expressly, namely that of the principal employer, the deputationist employee and the receiving employer. In the instant case, the Board of Management of the Ambedkar University, at no stage, has relaxed this condition of appointment so as to include an appointment by way of deputation and no such express consent had been given nor can it be gathered from any of the documents on record that the University had either appointed the respondent No.5 on deputation nor was the selection process prescribed for the said purpose followed as is evident from Clauses 20 and 21 of the General Instructions and Essential Information of the advertisement. He submits that had the aforesaid process been followed the same would have been in consonance with the terms of the advertisement and would have been a possible evidence to establish that this was a tripartite engagement. In the instant case, it was neither an offer on deputation nor was it accepted as an appointment on deputation. In such a situation, relieving of the respondent No.5 and a permission to her to join the University on deputation would be clearly in violation of the existence of any tripartite intent and in violation of the terms of the Statutes, Ordinances and the advertisement.
Sri Bose has then urged that the communication that has transpired relating to the request of the respondent No.5 to join on deputation and the resolution passed in this regard clearly demonstrates that the request of deputation made by the respondent No.5 had not been finally accepted by the Board of Management and was made subject to any communication from the Ministry of Human Resource Development, Government of India. He contends that the Ministry of Human Resource Development never gave any such consent or passed any order in favour of the respondent No.5. To the contrary, the latest communication of the Union of India dated 1.3.2017 clearly denies any role to be played by the Ministry stating clearly therein that the University being an autonomous body, the appointment on the post of Registrar would be governed by the Statutes, Ordinances and the Rules and Regulations of the University itself. He therefore contends that even this condition has not been fulfilled and in view of the fact that there was no acceptance by the Board of Management, the joining of the respondent No.5 and her engagement on deputation was unlawful.
He then contends that the respondent No.5 was relieved only for three years on deputation, whereas her contract offered by the University was for five years. The extension given to her in that regard has therefore been assailed as the Banaras Hindu University cannot govern the terms and conditions of engagement of the respondent No.5 in the Ambedkar University. It is urged that if the initial joining on deputation was bad, then any such extension of an invalid continuance also has to fall through. He has cited decisions to urge that a writ of quo warranto in this situation would lie for which he has cited the following decisions to support his submissions:-
(1) University of Mysore v. C.D. Govinda Rao [AIR 1965 SC 491 para 6] (2) State of Haryana v. The Haryana Cooperative Transport Ltd. [(1977) 1 SCC 271 paras 9 and 10] (3) Dr. Kashinath G. Jalmi v. The Speaker [(1993) 2 SCC 703 paras 33, 34 and 35] (4) Dr.M.S.Mudhol v. S.D.Halegkar [(1993)3 SCC 591 para 7] (5) Vinoy Kumar v. State of U.P. [(2001) 4 SCC 734 para 2] (6) High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat [(2003) 4 SCC 712 paras 22 and 23] (7) Arun Singh v. State of Bihar [(2006) 9 SCC 375 para 13] (8) B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association [(2006) 11 SCC 731 paras 49, 51, 52, 53, 54, 57 and 60] (9) Centre for PIL v. Union of India [(2011) 4 SCC 1 paras 51 and 53] (10) Rajesh Awasthi v. Nand Lal Jaiswal [(2013) 1 SCC 501 paras 19 and 31] (11) Central Electric Supply Utility of Odisha v. Dhobei Sahoo [(2014) 1 SCC 161 paras 21 and 22] He has supported his submissions on the issue of tripartite consent by citing the following decisions:- (1) Umapati Choudhary v. State of Bihar and another [(1999) 4 SCC 659] (2) Kamlesh Kumar v. State of M.P. and others [2007 (2) MPLJ 535] (3) Union of India v. Manoranjan Kumar and others [2010 SCC Online Del 3014] On the issue of lien on a post, Sri Bose has cited the following three decisions:-
(1) Triveni Shankar Saxena v. State of U.P. and others [1992 Supp (1) SCC 524 paras 17 and 24] (2) Jagdish Lal and others v. State of Haryana and others [(1997) 6 SCC 538 para 11] (3) State of Rajasthan and another v. S. N. Tiwari and others [(2009) 4 SCC 700 paras 14 and 21] During the course of arguments, Sri Bose had invited the attention of the Court to the decision of the Karnataka High Court by a learned Single Judge in the case of Karnataka Urban Water Supply and Drainage Board Employees' Association and another v. State of Karnataka and others [2006 SCC OnLine Karnataka Page 25] but it was pointed out by Sri S. K. Kalia, learned Senior Counsel for the respondent No.5 that the same would not hold water as the said decision was reversed by the Division Bench in a Writ Appeal by the Karnataka High Court itself and which judgment has been upheld by the Supreme Court in the decision of B. Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees' Association (supra) that has been cited by Mr.Bose, counsel for the petitioner himself.
Replying to the aforesaid contentions, learned Counsel for the University Sri Rajesh Tiwari has relied on the resolutions of the Board that shall be discussed in the judgment later on, and the affidavit of the Vice-Chancellor that denies certain facts but at the same time has, ultimately through the instructions as extracted above, urged that the allegations and counter-allegations on mala fides should be taken into account for any suitable verdict in accordance with law. Sri Tiwari has therefore indicated of a certain reservation about the conduct of the respondent No.5, but at the same time has left the dispute to be decided by this Court.
As indicated above, learned Counsel for the Union of India has made it clear that the Ministry of Human Resource Development has no role to play in the matter and this is what has been stated by Sri Atal appearing for the Union of India.
Sri Y. S. Lohit, learned Counsel for the Banaras Hindu University has urged that the BHU did not have any objection to the joining of the respondent No.5 on deputation and the relief prayed for in the present writ petition is misplaced, inasmuch as nothing has been shown on record that may render the relieving of the respondent No.5 by the BHU as being unlawful or contrary to any Statutes or Ordinances of the BHU. The petitioner has no locus to question the said relieving on the part of BHU.
The writ petition has been vehemently opposed on behalf of the respondent No.5 by Sri S. K. Kalia, learned Senior Counsel urging that the writ petition is not maintainable as it is founded on malice and vengeance and has been clearly designed to settle personal scores. This according to him has been deprecated by the Apex Court in the case of B. Srinivasa Reddy (supra) and for which he has relied on paras - 51, 52, 53 and 84 of the said judgment to substantiate his submissions. He has further submitted that the petitioner being the President of an Association for securing the interest of the Backward Community had been operating in the University and was trying to motivatedly persecute the respondent No.5. He submits that there is ample material on record to demonstrate that the petitioner to settle personal scores connected with infighting in the University has raised a challenge to the continuance of respondent No.5 through the present writ petition, and therefore is not a bona fide litigation. Apart from this, the petitioner himself being a Professor of the University is a Member of the Board of Management and part of it which is the appointing authority, and therefore he cannot question the continuance of the answering respondent, that too even after more than three years of continuance of the respondent No.5 as Registrar of the University. He submits that the answering respondent has been made a victim of the internal dissensions and the infighting in the University amongst the staff and he submits that the Vice-Chancellor has now taken a stand through his affidavit which clearly establishes that the answering respondent is sought to be victimized for no fault on her part. He therefore submits that the writ petition ought to have been dismissed at the very threshold in view of the observations made by the Apex Court in the case of B. Srinivasa Reddy (supra) referred to here-in-above.
He has then urged that once the petitioner admits that there was no fault in the selection process nor was the respondent No.5 ineligible, then in view of the observations made in para - 70 of the judgment in the case of B. Srinivasa Reddy (supra), even if there is a doubt about the joining of the respondent No.5 on deputation, the appointment of the respondent No.5 has to be held to be valid and a quo warranto would not lie in such a situation as the respondent No.5 is holding the office in accordance with law and is not an usurper.
He further submits that there is no prohibition in the Statutes, Ordinances or any of the terms and conditions of the advertisement so as to prevent or prohibit the joining of an incumbent on deputation. He has invited the attention of the Court to para - 26 of the Judgment in the case of Union of India and another v. Shardindu reported in 2007 (6) SCC page 276 to contend that the appointment of the answering respondent was not on deputation basis. He urges that the joining on deputation is a terminology used in the communications between the Banaras Hindu University and Ambedkar University as accepted by the Board of Management which nowhere alters or dilutes the eligibility of the respondent No.5 to hold the office nor does it incur any disqualification, inasmuch as the answering respondent has been simply permitted to join on deputation by it's parent employer without loosing lien on the original post.
He submits that the requirement of 15 years experience clearly means that somebody who is already engaged or employed with more than 15 years experience would be eligible but in such a situation, the applicant would never like to loose the lien on the parent post as the tenure appointment is only for five years. If it is presumed that such appointment on tenure post will amount to termination of lien in the parent organization, then no candidate would either apply or even attempt to get employment as there is no guarantee that such an incumbent would be continued after five years. It is for this reason that the joining on deputation is facilitated without disturbing the status of appointment, and therefore it is not contrary to any of the terms and conditions of the Statutes and Ordinances, and therefore, this cannot amount to something which may be attributable to the allegation of disqualification or continuance in employment for maintaining a writ of quo warranto.
He has then invited the attention of the Court to the resolutions passed by the Board of Management that have been referred and extracted here-in-above to contend that the resolution dated 20.11.2013 read with the communication dated 9.12.2013 does not affect the terms and conditions of her engagement or joining, in spite of the communication dated 16.12.2013 referred to here-in-above. He further submits that the request of respondent No.5 to join on deputation was accepted by the University on 9.12.2013 and on 21.12.2013 by the Board of Management with an observation that the respondent No.5 may approach the Ministry of Human Resource Development for deputation. Apart from this, after her appointment was duly notified by the University and she took over charge as Registrar and has functioned, the same cannot be made a subject matter of challenge through a writ of quo warranto, inasmuch as the appointment of the respondent No.5 was never challenged directly before nor it has been challenged now by praying for quashing of the same even in these proceedings. The only challenge raised is to the extension of deputation granted by the Banaras Hindu University. He then submits that the resolution dated 9.4.2014 recording the Action Taken Report in the resolution dated 21.12.2013 indicates that as a matter of fact, the Board of Management itself has confirmed the joining of the answering respondent on deputation, and therefore no exception can now be taken so as to describe the continuance of the respondent No.5 as an usurper of office.
We have considered the submissions raised and at the very outset, we may make it clear that the allegations and counter-allegations in respect of the manner in which the correspondence was either received about the extension of the services by the Banaras Hindu University in the office of the Vice-Chancellor of Ambedkar University in January, 2017 and it's processing onwards is not being adjudicated upon by us as to whether there was any misunderstanding or any incorrect representation in this regard either on behalf of the officials of the BHU or it's communication to the Vice-Chancellor who has attempted to clarify his opinion on the same through the affidavit that had been called upon by us. The aforesaid issue, in our opinion, will be of no relevance at this stage in view of what we have held hereunder to dispose of the writ petition on the legal issues involved. It is for this reason that we are not referring to the said affidavit for the purpose of deciding the controversy but inviting the same had become necessary as there were certain facts that had been raised during the course of hearing that required a clarification to that effect.
The first issue is as to when a writ of quo warranto would lie so as to construe that the holder of a public office has been continuing in office by way of usurpation. This issue is no longer res integra and the word 'usurpation' clearly means holding a public office by a person in violation of statutory provisions or one who is ineligible to hold the office on account of any statutory disqualification having been incurred even after entering office. The right to hold public office has a permanency, but the public has also the right to complain of the unlawful occupancy of a public office by a person who is either ineligible or is disqualified. The continuation in such an office gives rise to a cause for invoking a writ of quo warranto and it is for this reason that the law of limitation and laches is otherwise not generally applied when a writ of quo warranto is filed. The existence of ineligibility and disqualification is therefore not subject to any limitation for the exercise of jurisdiction to invoke a writ of quo warranto. The word 'usurpation' or the phrase 'usurpation of office' therefore has to be understood in the aforesaid context and not as a mere grabber of office. A person who has been occupying an office without following the due procedure of law which is not a mere irregularity, therefore renders such continuance invalid as it is illegal. It is well-known, particularly in service jurisprudence, that irregularities can be cured but illegalities cannot be endured. A writ of quo warranto need not be an immediate challenge and can be invoked even at a later stage. If an appointment at it's inception has been accepted, the same cannot be a ground to denude the authority of this Court under Article 226 of the Constitution of India to refrain from exercising such authority of issuance of a particular writ to rectify an error. This presence of power through a prerogative writ therefore has been engrained in the Constitution to preserve and protect the rule of law and to observe that unlawful occupancy of an office should not be continued even if it is found to be in violation of a statutory provision. However, this is a peculiar writ which also has to be exercised with discretion.
Applying the said principles as laid down by the Apex Court in a large number of decisions that have been cited at the Bar, there cannot be any dispute about the proposition that if the continuance in office is pointed out to be an outcome of patent illegality arising out of an ineligibility or disqualification, then the Court is not denuded of it's power to exercise any such discretion. The judgment in the case of B. Srinivasa Reddy (supra) has however cautioned that such a writ jurisdiction should not be made available if it is found that the person invoking the jurisdiction has done it for mala fide or certain obvious motivated reasons.
The allegation of the respondent No.5 is that the present writ petition is an outcome of vengeance and has been designed to settle personal scores. It is true that the petitioner in the writ petition has raised his grievance being a Professor of the University but he also has the status of the President of an Association. It is also to be noted that the petitioner is a Member of the Board of Management and the Registrar of the University as per Statutes is the ex officio Secretary of the Board of Management. The Finance Officer of the University had also raised an objection vide letter dated 16.12.2013 and 16.1.2017 about the engagement of the respondent No.5 on deputation. He had also pointed out about certain financial benefits having been gained by the respondent No.5 by virtue of her assignment that amounted to an irregularity in withdrawal of payments and which had a connection with status of her appointment in the University. This has also been found to be a ground by the respondent-Univesity to take a prompt action in this regard, but coming to the facts of the present case, we find that even if the petitioner had any intention to settle his personal scores, yet the acceptance or otherwise of the appointment of the respondent No.5 on deputation was clearly questionable as would be evident from the discussions made here-in-above and here-in-after. The Vice-Chancellor has also taken an exception to the continuance of the respondent No.5 in the University in the circumstances explained in his affidavit. The petitioner no doubt has filed this petition also raising his grievances in the background of his being the President of an Association and that may appear to be a personal grudge against the respondent No.5, but at the same time, the petitioner is a Member of the Board of Management and the respondent No.5 is the ex officio Secretary of the same Board by virtue of being the Registrar of the University. The petitioner therefore cannot be said to be alien to the cause relating to the continuance or otherwise of the respondent No.5 who is also the Record Keeper of the proceedings of the Board of Management. The element of personal grudge cannot rule out the consideration of the larger issue of the complaint of violation of law. This would be eclipsing the core issue of the nature of appointment on the post of Registrar. Thus, to throw out the petition merely on this ground on the facts of the present case would not be appropriate.
The second issue is with regard to the selection on the post, of it's components, the advertisement and the final offer of appointment. It is undisputed that the post of Registrar is that of a full-time salaried officer as per the Statutes applicable and extracted here-in-above. The post is nowhere defined to be filled by way of deputation. It is a tenure post of five years with a further stipulation of re-appointment upto the maximum age of 62 years. This Statute therefore makes it clear that the post is not intended to be filled by way of deputation. This statutory gap therefore cannot be a matter of being supplemented by any other method except by way of an amendment in the Statute itself. The advertisement as extracted here-in-above has described other posts to be filled by way of deputation for which there is a separate provision but the post of Registrar was clearly advertised as a tenure post and not as a post to be filled by deputation.
The advertisement, which is an invitation to an offer as understood in the law of contracts, does not invite applications on deputation. The selection that followed did not adopt the process for appointment on deputation as per Clause 21 of the advertisement. The offer of appointment dated 21.11.2013 on the basis of the resolution of the Board of Management dated 20.11.2013 and it's acceptance by the respondent No.5 on 25.11.2013 was not on deputation. Thus there was no intention to enter into a contract of appointment by way of deputation.
It is conceded by all parties including the respondent No.5 that the selection and appointment of the respondent No.5 by the Ambedkar University was not on deputation basis.
The appointment was clearly a tenure appointment of five years that was accepted as such and was incorporated in the resolution dated 21.12.2013 with a stipulation of the issue of deputation being sent to the Ministry of Human Resource Development. As indicated above, the Ministry vide it's letter dated 1.3.2017 has clearly stated that it has no role to play in the matter relating to the appointment of the present Registrar and the terms and conditions of the service of the Registrar are to be governed according to the provisions made in the Ordinances of the University. Neither the counsel for the University nor the learned Counsel for the respondent No.5 was able to point out any provision that may empower the University to fill up the post of Registrar by way of deputation. Consequently, the entire exercise of filling up of the post by way of deputation is absolutely alien to the entire selection process and at the same time, it is also nobody's case.
The third issue is of the power of the appointing authority to be exercised for permitting the selected incumbent to join on the post on terms and conditions that are neither part of the Statute nor the advertisement. It is here that the issue of deputation has to be dealt with. To deputate is to assign or appoint as a substitute or an agent. Deputation is the act of implementing the aforesaid process. To join is to bring together, connect, associate, unite, get linked. This act of joining of coming together can be a mode of appointment if it is prescribed. The reason is that the same would be a tripartite arrangement which is clearly borne out from the law that has been explained in the decisions cited at the Bar in three of the cases of Umapathi Choudhary (supra), Kamlesh Kumar (supra) and Union of India (supra). This tripartite arrangement therefore has to be a necessary process if the appointment has to be made by way of deputation. The arrangement is to precede appointment if there is an intention to appoint by way of deputation and has to be available under Rules. In the instant case, as indicated above, the Statute and the advertisement do not prescribe the post of Registrar to be filled by way of deputation. The advertisement in Clause 20 and Clause 21, as extracted here-in-above, prescribes a different mode of processing selection and appointment by exchange of documents if the post has to be filled up by way of deputation. In the instant case, admittedly no such process was adopted and as indicated above, it is not even the case of the respondent No.5 or the University that the appointment was by way of deputation. Thus the ingredients of the tripartite arrangement at the time of selection and offer of appointment were totally absent.
It is also to be noted that the respondent No.5 had been sanctioned deputation for three years only, whereas her tenure appointment was for five years. The same is sought to be rectified by the Banaras Hindu University by permitting her to join for another period of two years on deputation which is impugned in the present petition. This issue has also to be taken note of by the Board of Management of the Ambedkar University, as directed by the Vice-Chancellor to be placed in it's next meeting. The question of accepting the terms of extension of deputation would therefore be also within the powers of the Board of Management subject to the Statutes, Ordinances and the terms of appointment. A conditional consent to join on deputation itself envisages that the said condition is subject to an ultimate acceptance by the Board of Management.
The fourth issue now therefore which falls for consideration is, as to whether the permission to join on deputation consequent to the offer made was permissible under law or not. It is this grey area the advantage whereof is being claimed by the respondent No.5 contending that before joining, the respondent No.5 did make a proper request for allowing her to join on deputation which is neither prohibited under the Rules and the advertisement nor did the Ambedkar University take any exception to the same. In our opinion, it is not an issue of an exception being taken by the University but the correct rule has to be followed by the University in such matters.
The University itself has referred to a past practice in the resolution dated 21.12.2013 in respect of such appointments having been permitted where the incumbent was allowed to join on deputation. On a consideration of the law, as explained above, a past practice cannot override the statutory provisions and the gap if any in the Statute can be filled up by way of an express intention in the Statute. Even assuming for the sake of arguments that the University is an autonomous body, it can suitably make a provision for such joining. The advertisement in the present case nowhere indicates that a person selected on the post of Registrar will be also permitted to join by way of deputation. The argument of the learned Counsel for the respondent No.5 is that if it is nowhere prescribed, the University is competent to do so and the same should be presumed to have been expressly permitted in view of the 'No Objection' given by the University permitting the respondent No.5 to join on deputation and which now forms part of the resolutions confirming the said joining as is evident from the resolution dated 9.4.2014.
What we find on record is that the resolution dated 21.12.2013, that has been confirmed on 9.4.2014, only mentions about an action taken report for sending information to the Human Resources Ministry. The same was the outcome of the offer of conditional joining mentioned in the communication dated 16.12.2013. The respondent No.5 appears to have sent the letter to the Human Resources Ministry long thereafter on 12.9.2014. There was no response from the Human Resources Ministry and the latest response during the pendency of these proceedings on 1.3.2017 clearly dispels this doubt, whereby the Human Resources Ministry has completely absolved itself of having any say in the matter. In this background, the Board of Management ought to have taken a call on the status of this permission of joining by way of deputation in the absence of any role of the Human Resources Ministry to have a play in the matter. This was necessary as the joining of the respondent No.5 was made conditional as is evident from the order dated 16.12.2013 and indicated in the resolution dated 21.12.2013. The confirmation dated 9.4.2014 does not ultimately resolve to accept this status of the joining on deputation to have crystallized finally as the Ambedkar University had been continuously awaiting the response of the Human Resources Ministry. The letter to the Ministry was sent by the respondent No.5 on 22.9.2014.
The joining permitted by the Ambedkar University was therefore a facilitation and a new transformed arrangement of assignment. The University therefore through it's Board of Management had to finally pass a resolution in this regard keeping in view the Statutes, the Ordinances and the relevant law on the subject.
It is here that the argument of the learned Counsel for the respondents on the practical side has to be taken notice of, namely the nature of the tenure with it's 15 years' minimum experience for appointment would obviously be detrimental to an incumbent if the selected candidate looses the lien in the parent department. It is this gap and grey area that had to be resolved by the University. It is to be noted at this juncture, insofar as the in-house candidates or Teachers are concerned, a teaching faculty is permitted to join on the post by taking a long leave but this facility is not available to a candidate who is a non-teaching post. It is in this context that a special arrangement according to the respondent No.5 has to be made and which cannot be said to be contrary to law. The issue relating to lien therefore has to be considered as well. Over and above, if the advertisement did not mention any provision for joining on deputation, then the context of Articles 14 and 16 being violated would also arise that deserves to be taken notice of by the University for assignment in future.
Keeping this in mind, we are therefore of the opinion that the Board of Management has to take a final decision in this regard keeping in view the observations made here-in-above. The continuance of a past practice in view of the absence of the specific statutory provision therefore is a matter of permanent concern to be cured by the respondent-University or by an amendment in the Statutes. As indicated above, the Ministry of Human Resources has withdrawn itself, and therefore it is the Board of Management which has to take a decision in accordance with law. To this effect, we find the cause to be maintainable as the continuance or otherwise of the respondent No.5 would be dependent on this integral component relating to the appointment on the post of Registrar in the light of what has been said above. It is correct that a challenge raised by way of a writ of Certiorari could also have been made, but at the same time, if the continuance is dependent upon such a decision of the Board of Management and the correct interpretation of the statutory provisions, then for this reason as well, the writ petition cannot be thrown out for want of authority in this Court to issue an appropriate writ for resolving the issue.
The last issue that we would like to delve on is, as to whether the respondent No.5 had usurped the office in the literal sense of the term. As indicated above, the Ambedkar University itself had permitted a conditional joining. The respondent No.5 therefore did not voluntarily usurp office as she was otherwise eligible for the post. It is only the joining on deputation that has become the bone of contention between the parties and which in our opinion deserves to be resolved by the University itself as indicated above. Consequently, this would not be a case where a quo warranto could be issued but a Court always has the power to mould a relief in order to do substantial justice in the case. We are aware of the limitations of the scope of writ petitions in a service matter but at the same time, once we have found that a grey area does exist, then in view of what has been indicated above, we find it necessary that the Board of Management should resolve this issue.
Having given a thoughtful consideration to the entire aspect of the matter and as discussed here-in-above, we find that the issue relating to the respondent No.5 continuing on deputation was not finally determined by the Board of Management, and therefore keeping in view the stand taken by the Government of India as extracted here-in-above, it will be open to the Board of Management to take any appropriate decision in the matter with regard to the continuance or otherwise of the respondent No.5.
However, on the facts stated above, it is not appropriate to hold that the respondent No.5 is an usurper to office so as to issue a writ of quo warranto and restrain her from functioning as Registrar of the respondent-University. We accordingly vacate the interim order dated 20.2.2017 and the respondent No.5 will be entitled to discharge her duties as Registrar of the University, until any decision is taken by the Board of Management in this regard. The respondent No.5 had been restrained by us through an interim direction not to function as the Registrar of the University, and since the interim order has been vacated today by us, we further direct the respondent- Babasaheb Bhimrao Ambedkar University to release her salary and other entitlements and emoluments as per rules for the entire period which she shall be entitled to receive till she continues on the post of Registrar.
The writ petition accordingly stands disposed off.
Order Date :- 1.5.2017 lakshman [Sanjay Harkauli, J.] [Amreshwar Pratap Sahi, J.]