Uttarakhand High Court
Dr. Indu Singh vs State Of Uttarakhand And Others on 15 December, 2017
Author: U.C. Dhyani
Bench: K.M. Joseph, U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 508 of 2017
Dr. Indu Singh. ............ Petitioner
Versus
State of Uttarakhand & others. .............. Respondents
Mr. Vikas Bahuguna, Advocate for the petitioner.
Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand / respondent Nos. 1
& 2.
Mr. Paresh Tripathi, Advocate for respondent No. 3.
Mr. Neeraj Garg, Advocate for respondent Nos. 4 & 5.
JUDGMENT
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble U.C. Dhyani, J.
Dated: 15th December, 2017 K.M. JOSEPH, C.J. (Oral) Petitioner has approached this Court seeking the following reliefs:
"a. To issue a writ, order or direction in the nature of certiorari to call for records and quash the order dated 28.10.2017 (Annexure 1) by which the application of the petitioner for providing re-appointment was rejected.
b. To issue writ, order or direction in the nature of mandamus directing the respondent no. 2 to give the re-employment to the petitioner as per Statute 17.15 of the First Statutes of the University of Hemvati Nandan Bahuguna, Garhwal, 1978 till 30 June 2018."
2. Briefly put, the case of the petitioner is as follows:
Petitioner began her innings in the respondent aided Institution as an Assistant Professor in Political Science. Later on, petitioner was appointed as Principal by way of direct recruitment. The case of the petitioner is that she attained the age of superannuation on 19.10.2017. Petitioner filed Annexure No. 9 application before the second respondent, who is the authorised controller of the respondent College. The request of the petitioner has been turned down by the impugned order.2
3. Pleadings have been exchanged. We have heard Mr. Vikas Bahuguna, learned counsel for the petitioner; Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand; Mr. Paresh Tripathi, learned counsel appearing for respondent No. 3 University; and Mr. Neeraj Garg, learned counsel for the party respondents. It be noted that Mr. Neeraj Garg appears for respondent Nos. 4 & 5. The fifth respondent is the Committee of Management of the respondent College, which, it appears, has been taken over by the authorised controller, namely, respondent No. 2.
4. In the impugned order, what is stated is essentially that the petitioner is not entitled to extension of service after her superannuation from the post of Principal. In this regard, reference is made to Government Order dated 18.06.2005. The relevant portion of the said Government Order, which is extracted in the impugned order, reads as follows (translated version):
"The Government vide its GO No. 220/XVII(3)/AA/2005 dated 18.06.2005 provides that on attaining 60 years of age on the date of superannuation all privileges pertaining to superannuation would be made available and after that there would be no further extension of service. With regards to those teachers from whom work has to be taken till the end of the academic session where necessary, in such matters the procedure of re-employment will be conducted in accordance with the established procedures and after superannuation in accordance with Civil Services Regulations, Para 520, the salary payable would be determined after deducting the pension due and only one facility i.e. either DA or Dearness Relief would be payable."
5. Mr. Vikas Bahuguna, learned counsel for the petitioner would draw our attention to Para 17.15 of the First Statutes of the University of Hemwati Nandan Bahuguna, Garhwal, 1978 (hereinafter referred to as the "First Statutes"). It reads as follows:
"17.15 No extension in service beyond the age of superannuation shall be granted to any teacher after the date of commencement of these Statutes:3
Provided that a teacher whose date of superannuation does not fall on June 30, shall continue in service till the end of the academic session, that is, June 30 following, and will be treated as on re-employment from the date immediately following his superannuation till June 30, following:
Provided further that such physically and mentally fit teachers shall be re-appointed for a further period of two years, after June 30, following the date of their superannuation, as were imprisoned for taking part in freedom struggle of 1942 and are getting freedom fighters pension.
Provided also that the teachers who were re-appointed in accordance with the second proviso as it existed prior to the commencement of the Garhwal University (Twenty-second Amendment) First Stututes, 1988 and a period of one year has not elapsed afrter the expiry of the period of their re-employment, may be considered for re-appointment for a further period of one year."
6. He, next, drew our attention to the definition of the word "teacher" as contained in Section 2(19) of the Uttar Pradesh State Universities Act, 1973 (hereinafter referred to as the "Act"). It reads as follows:
"2. Definitions. - In this Act, unless the context otherwise requires:
(19) "teacher" in relation to the provisions of this Act except Chapter XI-A, means a person employed in a University or in an institute or in a constituent or affiliated or associated college of a University for imparting instructions or guiding or conducting research in any subject or course approved by that University and includes a Principal or Director."
7. Therefore, the conjoint reading of both these provisions, according to the petitioner, would show that the petitioner, though a Principal, but as Principal is also defined as being a teacher, has a statutory right to continue till the end of the academic session. In this regard, petitioner also sought to draw support from the following case-law of the Allahabad High Court:
(i) Meerut College Parivar Kalyan Samiti, Meerut vs. State of U.P. & others, reported in (2001) 1 UPLBEC 201;
(ii) Udai Narain Pandey vs. Director of Education (Higher Education), Allahabad & others, reported in (1999) 3 UPLBEC 1887; and 4
(iii) Dr. Dwarika Nath Rai vs. State of U.P. & others, reported in (2013) 99 ALR 181.
8. Learned counsel for the petitioner also referred us to a judgment of the Apex Court in S.K. Rathi vs. Prem Hari Sharma & others, reported in JT 2000 (8) SC 267.
9. In the judgment of the Division Bench reported in (2001) 1 UPLBEC 201, the court was concerned with the similar issue and the court proceeded to hold as follows:
"3. The question is whether the benefit of Statute 17.15 could be given to the Principal of an affiliated college. Section 2(18) of the State Universities Act. 1973, defines "teacher" to mean, "a person employed (for imparting instructions or guiding or conducting research in the University or in an institute or in a constituent, affiliated or associated college) and includes a Principal or a Director". By this reckoning, Principal of an affiliated college would be deemed to be a 'teacher' and, therefore, he was entitled to get the benefit of Statute 17.15 and accordingly, to continue in service till the end of academic session, i.e., to say till 30th June following the date of his superannuation. No resolution of Committee of Management is required to be passed in this regard inasmuch as the extension in service and re-employment lakes place by operation of law and the petitioner will be treated as "re- employment from the date immediately following his superannuation till June 30, following."
10. In similar way, in the judgment in (1999) 3 UPLBEC 1887, the court proceeded to hold as follows:
"9. The aforesaid definitions make it clear that the expression 'teacher' includes a Principal. Therefore, while considering the first proviso in Statute 16.24, re-employment of a principal has also to be granted as the said proviso only expression used is 'teacher' for the purpose of such re-employment."
11. As far as the judgment of the Apex Court in S.K. Rathi's case (supra) is concerned, that involved a case, where a person, who was 5 working as a teacher, came to be appointed provisionally as a Principal. In the said context, the court, inter alia, held as follows:
"4. On a query raised by us, learned Counsel for the respondent drew our attention to a decision of the Government contained in document dated 16th February, 1999, in which it was, inter alia, stated that for teachers like respondent No. 1 the age of superannuation was 60 years. The said decision further states that no extension in service shall be granted but "if the date of superannuation of a teacher does not fall on June 30, the teacher shall continue in service till the end of the academic session i.e. June 30, following". This is the clause on which reliance is placed by the learned Counsel in support of the decision of the High Court.
5. There is no doubt that the said decision would enable respondent No. 1 to continue as a teacher, which is his substantive appointment, up to 30th June, following the day when he attained the age of 60 years, but this clause can not allow him to continue as an acting Principal which is a different post altogether. It cannot be disputed that the post of Principal and of the teacher is not the same. It is a teacher on promotion who is appointed as a Principal and there is no decision of the Government giving extension beyond the age of 60 years to a Principal. This being so, the appeal is allowed and the decision of the High Court permitting respondent No. 1 to function as Principal of the Institution till 30th June, 2000 is set aside."
12. Finally, as far as the judgment in (2013) 99 ALR 181 is concerned, the court, inter alia, held as follows:
"10. The decisions in the case of Om Saran Tripathi (supra) and S.K. Rathi (supra) are of no help to the respondents inasmuch as they related to an officiating principal and not a regularly appointed principal, as is the petitioner. We further find that in refusing session's benefit to the petitioner,wrongly reliance was placed on Government Order dated 02.06.2001 inasmuch as by Government Order dated 05.07.2001, issued by way of corrigendum, it was made clear that the Government Order dated 02.06.2001 would be applicable to an Officiating Principal. As the petitioner, admittedly, was a regularly appointed principal, reliance placed on the Government Order dated 02.06.2001 read with Government Order dated 05.07.2001, was misconceived. Furthermore, we do not find any material on record to infer that providing a session's benefit to a teacher is at the discretion of the authorities. As the proviso to statute 15.24 uses the words "will be treated as on re-employment from the date immediately following 6 the date of his superannuation", discretion with the authorities to grant or not to grant such benefit is excluded, inasmuch as the benefit would be available by operation of law. Even otherwise, we find that the Vice-Chancellor of the University, by his order dated 18.06.2011, had suspended the operation of the suspension order. Thus, we are of the considered view that refusal to grant session's benefit to the petitioner cannot be legally sustained. Accordingly, the order 26.07.2012 (Annexure No.10) and the consequential communication /order dated 28.07.2012 (Annexure No.9) are hereby quashed. The petitioner will be entitled to the session's benefit and would be entitled to continue as Principal of the said college till the date of his retirement i.e. 30.06.2013, with all the consequential benefits. However, this will not preclude the respondents to take action against the petitioner, in accordance with law."
13. The last decision is relied on to point out that the decision of the Apex Court in S.K. Rathi's case (supra) would not assist the respondents to contend that a person, who is working as a Principal being regularly appointed by way of direct recruitment as in this case, would not be entitled to the benefit of Para 17.15, as the decision in S.K. Rathi's case (supra) related to a case of an officiating Principal.
14. Per contra, Mr. Pradeep Joshi, learned Standing Counsel for the State, and Mr. Paresh Tripathi, learned counsel for the University, would contend that the petitioner cannot get the benefit of Para 17.15. It is the case of the both, Mr. Pradeep Joshi as well as Mr. Paresh Tripathi, that the purpose of Para 17.15 may not be lost sight of. It is intended to secure continuance of a person, who is actually taking classes. If the retirement of a teacher creates a vacuum in the middle of the academic year, that will adversely affect the academic interest of the students and it is, therefore, that the law giver has provided for the continuance of such a person till the end of the next academic year. In this case, it is their case that the petitioner was not taking any classes.
15. Mr. Paresh Tripathi also has another contention, which is based on Para 17.14. Para 17.14 reads as follows:
7"17.14. (1) The age of superannuation of a teacher of an affiliated college shall be 60 years.
(2) The date of superannuation of such a teacher shall be the date immediately preceding his 60th birthday."
16. He would, therefore, submit that the petitioner has approached this Court seeking to invoke the provisions of the Statutes and, therefore, the petitioner would also be bound by Para 17.14, which declares that the age of superannuation will be 60 years. He points out that, in this case, the petitioner has already completed 65 years. This, apparently, is on the basis of raising of the age of superannuation following the adoption of the UGC Guidelines by the State of Uttarakhand; but, this raising of the age of superannuation is not seen manifested by a change in Para 17.14. Therefore, it is his contention that the petitioner may not be entitled, at any rate, to continue. Mr. Paresh Tripathi would submit that there is a distinction between extension of session benefit and re-employment.
17. Mr. Neeraj Garg, learned counsel appearing for respondent Nos. 4 & 5, would contend that the Court may notice Para 17.18 of the First Statutes, which reads as follows:
"17.18 A teacher of the affiliated college dismissed on any of the grounds mentioned in Clause (b), Clause (c), Clause (d) or Clause (e) of Statute 17.04(1) shall not be re-employed in any University or in any college affiliated to or associated with any such University in any capacity."
18. He would submit that this is a case, where the petitioner, while being a Principal, came to be dismissed by the Committee of Management. He has a case that, though the Vice Chancellor has not given approval as was required, the Vice Chancellor has also not passed an order expressly reinstating the petitioner as the Principal and, therefore, the title of the petitioner to continue as Principal, itself, is questioned. He also supports Mr. Paresh Tripathi in his contention that Para 17.14 would stand in the way of the petitioner claiming benefit of Para 17.15.
819. Mr. Vikas Bahuguna, learned counsel for the petitioner, would point out paragraph 7 of the writ petition to contend that the petitioner has a definite case that the petitioner was taking classes. This is refuted by Mr. Pradeep Joshi, learned Standing Counsel, pointing out the definite stand taken in paragraph 17 of the counter affidavit that the petitioner was not taking any classes. There is a rejoinder affidavit also filed.
20. Mr. Neeraj Garg and Mr. Paresh Tripathi would point out that the entire case of the petitioner is built around the provision relating to re- employment; whereas, the request was for extension of service. Mr. Vikas Bahuguna would submit that it is only a wrong mentioning of the provision.
21. A perusal of the order, which is impugned before us, would show the following:
The authority has not considered the impact of Para 17.15 of the First Statutes. The authority, instead, has relied on a Government Order. There is no reference to Para 17.15. It be noted that there is no dispute before us that Para 17.15, if other conditions are fulfilled, is indeed the law, which governs the issue at hand. This is a statutory prescription and it cannot be overlooked. Yet, the authority has not looked into the impact of Para 17.15. The authority has also not, apparently, looked into the effect of Para 17.14 or Para 17.18, which is pressed by Mr. Neeraj Garg.
22. Therefore, this is a case, where the matter must be re-done by the authority. But, before we remit the matter back, we feel it is our duty to clear the ground by way of declaring the law relating to Para 17.15. The case of the petitioner is based on the definition clause, namely, Section 2(19) of the Act, as embracing within its scope the Principal, namely, that a teacher would include the Principal. Therefore, the petitioner would contend that Principal being a teacher would automatically get the right to continue under Para 17.15. Reliance is also placed on the decisions of the Allahabad High Court. We are of the view that the argument of the 9 petitioner cannot be accepted absolutely. It is to be remembered that a definition clause is inserted in statutes primarily for the purpose of avoiding repetition of the definition, which is intended by the law-giver for the various provisions in an Act. But, at the same time, that is not to say that the duty of the court ends by merely looking at the definition clause and applying it mechanically irrespective of the demand of the context, which is provided by the setting of the statutory provision in question contained in the Act and the purpose for which the provision is intended. It is, therefore, important to also notice that the Legislature, being conscious of this requirement, always begins a definition clause with the words "unless the context otherwise requires". This provision is also to be found in the definition clause in this case. In other words, the definition clause recites that, unless the context otherwise requires, the word "teacher" will include Principal also. Turning to the context and the purpose of Para 17.15, we would think that the purpose would appear to be to prevent creation of a sudden vacuum by the superannuation of a person, who is actually carrying out teaching activities. A person, who retires after 30th June, is entitled to continue till the end of the academic year. Apparently, the intention is to cater to the supreme need to not adversely affect the academic activities of the institution and to safeguard the interest of the students. By the end of the breathing time provided by the statute during which the member of the teaching staff will continue, it is expected that alternate arrangements are made for appointing somebody else in the vacancy created by the superannuation of the teacher concerned. If this be the purpose, the question must necessarily be asked whether a person, who is working as Principal, would invariably answer the description of a teacher, who is actually taking classes. In our view, it is not necessary that, in every case, a person, who is working as a Principal, would also be a teacher in the sense that he is a person, who is actually taking classes for the students. A Principal may be, in other words, confined to discharge of administrative duties for which the Principal is appointed. There may be another situation, where a Principal may also be a teacher in the sense that he may also be taking classes. We would think that both categories cannot be equated and given similar 10 treatment under Para 17.15. We are of the clear view that the mere reference to the definition clause cannot assist the petitioner to dislodge the intention and the purpose for which Para 17.15 has been inserted. Therefore, we take the view that, in the context of Para 17.15, a person, by merely being the Principal of the Institution, cannot stake a claim to continue till the end of the academic year. However, it may happen that the person may be working as a teacher. The resolution of the dispute in this case does not end by the aforesaid observations made by us. There can be a case, as it happened in S.K. Rathi's case (supra), where a person, who was working as a teacher, was appointed as officiating Principal of the Institution; whereas, in this case, the petitioner, who was working as an Assistant Professor in Political Science, came to be directly recruited and substantively appointed as Principal. In the case decided by the Apex Court, the court took the view that the petitioner therein, who was working as officiating Principal, would not have the right to continue as officiating Principal by clutching at the provision. In this case, however, the petitioner was though substantively appointed originally as Assistant Professor, she came to be directly recruited as Principal and, therefore, her substantive appointment, as on the date of superannuation, was on the post of Principal. If it is found that the petitioner, though appointed as the Principal, was working also as a teacher in the sense in which we have referred to earlier, it may not be possible for continuing her as an Assistant Professor.
23. Therefore, having made this determination about the impact of Para 17.15, we feel that the matter must be re-done. We leave open the contentions of the party respondents, as also Mr. Paresh Tripathi regarding the effect of Para 17.14. We also direct that the issue whether the petitioner was actually functioning as a teacher in the sense that she was taking the classes at the relevant time, being a factual matter, must be resolved by the District Magistrate with an opportunity to the petitioner to make available such material as are relevant. An opportunity must also be given to respondent Nos. 4 & 5. In order that the matter be resolved expeditiously, we pass the following order:
11We allow the writ petition; the impugned order will stand quashed; and we direct that the second respondent will consider the matter afresh in the light of the observations made by us and in accordance with law. In order that a decision be taken expeditiously, we further direct that the petitioner and a representative of the fourth respondent shall be present before the second respondent at 11:00 a.m. on 21.12.2017. After hearing them and after considering the material produced, a decision will be taken within a period of one week thereafter. We make it very clear that, if the second respondent finds that the petitioner had not been taking classes, the claim of the petitioner must necessarily be rejected. Till a decision is taken, petitioner will be allowed to continue.
24. Let a certified copy of this judgment be issued by 16.12.2017.
(U.C. Dhyani, J.) (K.M. Joseph, C. J.)
15.12.2017 15.12.2017
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