Andhra HC (Pre-Telangana)
Y. Chandrakala vs Registrar, S.V. University, Tirupati on 3 August, 2000
Equivalent citations: 2000(5)ALD454, 2000(5)ALT274
ORDER
1. The issue raised in these four writ petitions being common wherein the decision of the Government to refuse to create two posts of Project-cum-Extension Assistant (Non-technical) and Project-cum-Extension Assistant (Technical) in the Centre for Rural Development and Appropriate Technologies (for short 'the CERDAT') in Sri Venkateswara University (for short 'the University'), Tiruptai has been assailed and they can be disposed of by a common order.
2. From the marathon arguments that have taken place in this case, the facts that are culled out from the records, are hereunder:
Futurology Center for Appropriate Technology and Rural Development (for short 'the FACTRD') attached to the Department of Civil Engineering, S.V. University College of Engineering, Tirupati was functioning prior to 1990. For this Department, the University Grants Commission (for short "the UGC"), in its file No.F.66-1/90 (A-1), dated 5-10-1990, agreed to provide certain grants to the University for the development programmes for taking year 1990-91 i.e., the annual component of Part I allocation for the 8th plan period after obtaining the recommendation of the Expert Committee at its meeting held on 29-8-1990. In this letter, the UGC agreed to meet the actual expenditure incurred by the University towards payment of salaries to the teaching staff of one Professor and four Lecturers. During the 8th Plan period, the UGC, in addition, came forward to meet the expenditure as against the schemes approved during the 7th Plan period. It is clearly stated:
"......the Commission, in addition, has also agreed to provide grants to the University against the schemes approved during the 7th Plan period as detailed below :
a...............
b...............
c................
d. Salary of teaching staff, technical Staff, etc., appointed or yet to be appointed against the 7th Plan approved posts for the period from 1-4-1990 to31-3-1992."
3. It is further observed that the Schemes approved to be implemented by the University in consultation with the Academic and Planning Board of the University which is expected to regularly evaluate and monitor the progress of various schemes to ensure their implementation and timely completion and send a report to UGC in that regard by 30th of June every year. In the next para, the UGC made it clear that the assistance of the UGC for staff approved under 8th Plan scheme will be available up to 31-3-1995 and the State Government has to take over the recurring liability from 1-4-1995, In fact, this communication makes it, very clear that the UGC assistance will be available only after such a letter from the Government is sent to the UGC. After receipt of the said letter, the State Government, in its letter No.153 UE.1-91-2, Education, dated 31-10-1991, agreed to take over the recurring liability with effect from 1-4-1995 on the maintenance of one post of Professor and four posts of Lecturers for the establishment of a center for Vocational courses. In the mean time, FACTRD seemed to have been renamed as CERDAT. After receipt of the above letter, the Co-ordinator addressed a letter, dated, 21-10-1993, to the Registrar of the University stating that the center was set up aiming at:
(i) Offering One Year PG Diploma Course in Rural Development and Appropriate Technologies to students of all discipline;
(ii) Setting up a Documentation Center through which information collected on appropriate technologies for rural development would be disseminated to development functionaries/N.G.Os.
(iii) Conducting techno-socio-economic feasibility studies and surveys in the adopted villages for formulating micro-level plans for the holistic development of villages.
(iv) Conducting orientation and refresher course to grass-root level functionaries like village teachers, V.D.Os., community health workers, Sarpanches, etc., pertaining to transfer appropriate technologies for rural development;
4. And the Center needs the services of two core staff members designated as Project-cum-Extension Assistants to carry out the work pertaining to the training, demonstration and extension work in the villages to be adopted by the Center in the time scale pay of Rs.2200-75-2800-100-4000. At the end, the Co-ordinator requested for early appointments in these two posts. The letter of the Co-ordinator seemed to have been placed before the Planning and Monitoring Board of the University as required under Section 28 of the A.P. Universities Act 1991 and the Board agreed for the creation of these two posts.
5. Thereafter, the University in its advertisement No.E-II(2)/Advertisement/ 93(2), dated 19-1-1994, invited applications in the prescribed proforma to fill up the posts in the University service and the posts that are sought to be created by the University in the CERDAT at items 7 and 8. It is not in dispute that the petitioner Chandrakala in WP No. 14333 of 1995 and WP No.31471 of 1998 was selected as Project-cum-Extension Assistant (Nontechnical), and the petitioner Suresh Kumar in WP No. 14334 of 1995 and WP No.32130 of 1998 was selected as Project-cum-Extension Assistant (Technical). The appointments were given by the Vice-chancellor of the University, in the proceedings No.E.III(5)/App./CERDAT/94, dated 5-4-1994. At this stage, the University received a communication from the Ministry of Human Resources Development in letter No.F.2-1/93-TD.VI, dated 24-3-1994 sanctioning about Rs.333.70 lakhs during the financial year 1993-1994 for the identified Engineering institutions as grant-in-aid for meeting the recurring and non-
recurring expenditure for implementing the projects all over the country. Under item No. 16, an amount of Rs.6.80 lakhs towards non-recurring expenditure and Rs.1.20 lakh towards recurring expenditure was sanctioned to the CERDAT under the control of the Principal, College of Engineering, S.V. University, Tiruptai. At the end of this letter, it is stated hereunder:
"Institutions are requested to absorb recurring activities of the projects into their regular annual non-plan activities as these areas are of vital importance."
5. The Vice-Chancellor, in his proceedings, dated 15-12-1994, sent utilisation certificate for an amount of Rs.8 lakhs sanctioned by the UGC by the letter, dated 24-3-1994. After appointment of these two individuals, for the reasons best known to the University, a letter was addressed to the UGC on 22-8-1994 to utilise the services of these two individuals by downgrading the posts of two Lecturers in the Center from out of the unfilled sanctioned posts i.e., 2 Readers and 1 Lecturer or 2 Lecturers and 1 Reader outside the 7th Plan and 1 post of Professor and 4 Lecturers sanctioned during the 8th Plan for vocational studies. This exercise seems to have been done by the University to impress upon the UGC that they are not going to incur any additional financial commitment forgetting the assurance given by the UGC in letter, dated 5-10-1990, wherein it has expressed its willingness to meet the additional expenditure for the teaching staff as well as the technical staff appointed or to be appointed against the 7th Plan approved posts for the period from 1-4-1990 to 31-3-1992 apart from agreeing to meet the salary component of 1 Professor and 4 Lecturers. Neither the petitioner nor the University did place any information/ proceedings whether any technical staff were sanctioned by the UGC during the period mentioned above. Even if the UGC failed to sanction technical staff during these years when it was brought to the notice of the UGC that for successful functioning of a center, not only staff but also technical staff are required. The UGC consisting of Experts in education is expected to look into the genuine request of the University. And in the normal course, any prudent man expects that the genuine request of the University will be considered from its proper perspective. But, to the surprise of this Court, the UGC negatived the request of the University in its communication, dated 15-11-1994, without giving any reason. This Court can only express its anguish the way in which the officials on whom the onerous responsibility of running administration rests, are conducting themselves in this manner. Having received the said communication, the Registrar, in his proceedings, dated 29-3-1995, requested the UGC to reconsider the issue and accord approval as there is no financial commitment in accepting the proposal as it is within the overall allocation of funds made available to the University. Having waited for a considerable time, the Registrar, in his proceedings, dated 30-6-1995, dispensed with the services of Chandrakala as Project-cum-Extension Assistant (Non-technical) and reverted her to her substantive post of Junior Assistant as she was an inservice candidate and the other man was terminated from service. Again the Registrar in his proceedings, dated 6-7-1995, directed the Co-ordinator to relieve the candidates forthwith and report compliance to avoid complications and legal problems in future. Having received the said communication, the Co-ordinator, in his letter, dated 6-7-1995, having emphasised the need for creation of these two posts, requested the Registrar to address a letter to the UGC to ratify the creation of these two posts by bringing the following points to its notice:
(i) Rural Development is a vocational course.
(ii) Since the nature of the work of the two posts involve Project preparation, and extension in addition to teaching, these two posts were created by the University against the sanctioned UGC posts.
(iii) These points were explained to the UGC in addition to the fact that these posts involve teaching to be a major part; and
(iv) Usual procedures and not ad hoc procedures were followed in filling these posts by the University.
6. The Co-ordinator further requested the Registrar that in the event UGC refuses to convert two Lecturer posts into the Project-cum-Extension Assistants, to seek approval of the State Government for creation of these two posts by stating that the expenditure for these posts shall be met from the Block Grant that is being made available every year. In the penultimate paragraph, he made it clear that the center cannot be continued without the service of the two incumbents in question and the Registrar has to find out one way or the other to continue their services in CERDAT. Without reference to the request of the Co-ordinator, the Registrar, in his proceedings, dated 12-7-1995, passed orders stating that the incumbents are deemed to have been relieved with effect from 30-6-1995. Aggrieved by the proceedings of the Vice-Chancellor, dated 30-6-1975 wherein the services of the petitioner are sought to be terminated as Project-sum-Extension Assistants. Chandrakala filed WP No.14333 of 1995 and Suresh Kumar filed WP No.14334 of 1995. This Court while admitting WP No.14333 of 1995, by order dated 13-7-1995, passed interim orders as hereunder:
"Pending further orders on this petition the respondent is directed not to fill up this post which the petitioner holds prior to the impugned order in CERDAT, S.V. University, Tirupati by any other person in case the University Grants Commission grants permission for continuation of the post."
7. At this stage, the Co-ordinator once again addressed a detailed letter to the Registrar on 26-7-1995 at least to approach the State Government to get approval for creation of these two posts. Basing on the said letter, the Registrar, in his letter, dated 11-9-1995, addressed a letter to the Government. The last para of the order is hereunder:
"I am by direction to request you kindly to sanction the following the non-teaching posts with the scale of pay noted against each by sanctioning additional grant of Rs.1.13 lakhs per annum and request you to communicate the concurrence of the State Government as required under Section 49 of the A.P. Universities Act, 1991."
After giving the scales, the Registrar stated:
"This matter may kindly be treated as MOST URGENT."
8. On the basis of this letter, the note file was opened in the Education Department, Secretariat in C-No.1162/UE.1-1/95), Education (UE.I) Department. Paragraph 6 of the note file states hereunder :
"In view of the above, it is for consideration and orders whether the proposal of the Registrar, S.V. University for sanction of two non-teaching posts as referred to at in para (4) in page 2, may be accepted, subject to the condition that the additional expenditure shall be met by University from the Block Grants, without asking any additional grants either now or in future."
9. A look at the note file proves that the officers of the Government played 'Vaikuntapali' game than considering the request of the University from its proper perspective. At this stage, I am not referring the queries raised by the various officers from time except observing that none of the queries raised by the officers have no bearing on the issue. After answering various queries raised by the officials of the Education Department, Finance Department and the General Administration Department and after obtaining the approval of Minister for Higher Education, the Minister for Finance and the Chief Minister, the matter was placed before the 832nd meeting of the Council of Ministers on 1-2-1997. The Council, in its Resolution No.67/97, deferred the matter. Thereafter the matter was placed before the Cabinet in its 834th meeting held on 15-2-1997 and the matter was again deferred by the Council in its Resolution No.95/97, the item was deferred for want of time. Third time, the matter went to the Cabinet in its 835th meeting held on 24-2-1997. Again, the Council deferred the item in its Resolution No.123/97. At this stage the officer felt that the note to the Cabinet needs revision on the ground that the individuals have been already relieved and the project itself is over. It is not known from where they got the information that there are project posts. The story is repeated again and ultimately, the matter went up to the Cabinet. Again the file, after crossing through the various seats in the Government Departments, a Cabinet note was placed at 866 the meeting held on 15-4-1998. But, the Council, in its Resolution No.128/98, again postponed the subject without taking any decision. The cycle is again repeated and the matter went to the Cabinet in its 867th meeting held on 23-4-1998 and again the Cabinet postponed the decision on the item in its Resolution No. 151/98.
10. At this stage the file has taken a new turn on the basis of a xerox copy which was found at page 145 of the current file maintained by the Government without any reference and without any signature. It is not known at whose instance this paper came to the Government. It is useful to extract the same hereunder:
"Information relating to CERDAT, Dept. of Civil Engg., SVU College of Engg., Tirupati.
1. Posts sanctioned and date of Sanction order No. sanction order of the posts.
2. What are the projects sanctioned by MHRD? Year of 1993. CERDAT.
3. Duration of the project: 15 months.
4. Date of Completion of the project: 1994-95.
5. Total Financial Assistants from MHRD during the project period: Rs.8.00 lakhs.
6. Did MHRD giving New projects? No."
11. The learned Counsel for the petitioners submits that one Naga Ratnam, who is working as Superintendent in the University, initialed this information. The learned. Counsel appearing for the respondents are not able to say how this information emanated on the letter head of the University, and how and in what circumstances this communication came to the file and at whose instance this communication came to the file of the Government. On the basis of certain unfounded information given in this piece of paper, the concerned clerk having understood the happenings in his own way from the date of receiving the letter of the Registrar for creation of these posts brought to the notice of the authorities concerned that the petitioner approached this Court questioning the orders of the Vice-Chancellor dated 30-6-1995. In his note, he states that the very CERDAT center is a scheme sanctioned by the Ministry of Human Resources Development and it is a time bound scheme and as the same was already completed during 1994-95. In para 126 of the note file he sought for orders whether the proposal placed before the Council of Ministers for approval may be withdrawn and the proposal be negatived. In Para 127, it is stated:
"May be circulated to Hon'ble C.M., through C.S. for approval of para (126) above."
12. Though it was marked to the Secretary/C.S/C.M. the file seemed to have been not circulated to C.M. but at page No.48 of the note file in Para 130 it is stated:
"Now, the orders of C.S. on para 126 ante may kindly be perused on pre-page."
13. I have seen that pre-page very carefully. Except the signatures of the Secretary and the Chief Secretary, I do not find any notings made by them i.e., whether they are accepting the proposal or negativing the proposal more so without reference to the correspondence and the note file that the running in the Department for over 4 years. Though the file marked for the Chief Minister indicates that the Chief Minister had seen the file, I do not think that the file ever reached the Chief Minister before issuance of the orders. On the basis of the signatures of these officers the proposal was withdrawn from the Council of Ministers in Para 134 of not file by G.A. (Cabinet) on 12-5-1998 and thereafter orders were issued in G.O. Rt. No.785, dated 25-6-1998 rejecting the request of the University in Para 6 which reads:
"In the circumstances explained above. Government have examined the proposal for sanction of two posts of Project-cum-Extension Assistant (one technical post and one non-technical post) and to sanction of additional grant of Rs.1.13 lakhs in the P.G. Centre for Rural Development and Appropriate Technology, S.V. University, Tirupati is rejected as the scheme sanctioned by the Ministry of Human Resources Development i.e., Center for Rural Development and Appropriate Technology is a time bound scheme with a duration of 15 months. The scheme is already completed during the year 1994-95."
14. From this it is seen that the request of the University was rejected on the ground that an additional grant of Rs.1.13 lakhs was sought by the University while sending proposals for creation of the post and the CERDAT is a time bound scheme with a duration of 15 months and the scheme already ended in the year 1994-95 itself. It is suffice to state that though the note-file was started on 12-10-1995, till the notice prepared on 25-4-1998 i.e., for over long three years the ground on which the request of the University was turned out did not find a place in the note file. It is only on the anonymous communication received by the Government, this order was passed. The Co-ordinator having come to know of the orders passed by the Government, once again reiterated the need of engagement of the petitioners in the CERDAT center by making it clear that these two posts do not belong to MHRD Scheme and these two posts are required to run regular activities of the center. He also made it clear that "without these posts being filled, it will be very difficult to run PG Diploma and to carry out the regular activities of CERDAT." At the same time, the petitioners filed WPNo.31471 of 1998 and WP No.32130 of 1998 questioning the orders of rejection passed by the Government. This Court while admitting WP No.31471 of 1998 by order dated 12-11-1998 and WP No.32130 of 1998 by order dated 19-11-1998 issued interim directions to the Government to consider the case of the petitioners for re-engagement in the posts in accordance with the recommendations made by the 3rd respondent i.e., Co-ordinator in his letter dated 24-9-1998.
15. Having received the orders from this Court, the University fifed vacate stay petitions seeking vacation of the interim orders. But this Court by order dated 10-6-1999 and 11-6-1999 respectively, having disagreed with the contention of the University, made the inteum order absolute and posted the writ petition for final hearing directing the respondents to consider the case of the petitioner in the light of the letter of the Co-ordinator dated 24-4-1998 and pass appropriate order within 8 weeks from the date of receipt of the copy that order. Having received the orders of this Court, the Government in its letter No.1 162/UEI-1/1995 dated 21-8-1999 passed orders rejecting the request of the Co-ordinator by stating that; (1) The very appointment itself is irregular and against VIII plan norms; (2) University appointed them without prior permission of the UGC or the State Government; and (3) The incumbents were appointed against the time bound scheme which came to an end in 1994-95 and directed the University to file writ appeal against the orders of the Court forgetting the very request of the University and the purpose of creation of the post in its 1st letter dated 11-9-1995 which was reiterated from time to time during the marathon correspondence that has taken place for over 4 years.
16. From the above factual narration, the Court is called upon to decide the legality of the orders passed by the Government in G.O. Rt. No.785, Education (UE-I-1) Department, dated 25-6-1998 and the letter dated 21-8-1999 (2) whether these orders have emanated on application of mind or they are the result of non-application of mind (3) whether the officers concerned exceeded their limits in passing these orders.
17. The Government Pleader who always tries to save his clients by taking all technical pleas from A to Z when his clients are caught on the wrong track, raised the following contentions in support of the orders issued by the Government: (1) The Court cannot grant relief that was not sought for by the petitioners and de hors the pleadings. At the same time, it is not in dispute that the petitioners committed any mistake in the factual narration of the facts of the case. Further, the Apex Court way back in 1952 ruled that it is for the Court to mould the relief to undo the injustice done to the citizen than throwing him out of the Court on technical pleas. Further the facts referred supra were culled out by the Court by scrupulously going through the notings in the file and the petitioners may not be knowing what is happening in the Government more so whether the University is trying to get the approval of the Government for creation of the posts. I am inclined to borrow the words of Ram Jethmalani, the sacked Law Minister from the statement made by him in Rajya Sabha on 31st July, 2000 wherein the functions of the Courts were explained in crystal clear terms as "The Supreme Court and, in fact every Court, is to be on the side of the common man who needs constant protection against executive insolence, corruption and incompetence. Tension between the Judiciary and Executive is a welcome sign. The so-called harmony of the two may well be at the expense of the constitutional democracy itself." Hence, the objection raised by the Government Pleader is rejected.
(2) That under Rule 15 of the Writ Rules framed by the High court, if the Counsel for the petitioner wants to peruse the records, he shall make a request in writing to the Government Pleader in that behalf and if such request is refused, the party shall be entitled to apply to the Court for a direction in that behalf, and in this case without following the procedure, the records of the Government were made available to the petitioner's Counsel and he is deprived of the opportunity of claiming privilege from showing the records to the Counsel for the petitioners. Such a statement was made by the Government Pleader forgetting Rule 27 of the Writ Rules, which deals with the issuance of Rule nisi on admission of a writ petition by the High Court. The Rule nisi to be issued by the Court on admission of the writ petition will be in Form No.7.
18. From this, it is seen that the respondents who receive the Rule nisi are bound to place the records before the Court and I am sure the same Government Pleader never argued the matter without taking 4 to 5 adjournments for production of the records. If the Court demands slrict implementation of the rule nisi, perhaps the Government will be out of Court as it was not in the habit of producing the records without taking several adjournments wasting the precious time of the Court. Be that as it may, in this case after I started hearing the case, having gone through the note file and having noticed that atleast the matter went 5 times to the Cabinet and at that stage on the basis of a paper in which wrong information was furnished, the file took a new turn and rejection orders were issued without the concurrence of the political executive and every time the file is taking nearly one year time, to save the time of the Court, I directed the petitioners Counsel to go through the note file and cull-out whether any further useful information is available from the file. Though, the Government Pleader is entitled to claim privilege over the files of the Government, it is for the Courts to accept the request or reject the same. More so, the law is well settled on this aspect i.e., the Government can claim privilege from showing the files to other side only in case where the contents of the files should not be disclosed for security reasons or in public interest. Admittedly, that was not the case in this case. Even if he had claimed privilege, it would not take a fraction of the second to reject the claim of the Government Pleader. Hence, the second contention is also rejected.
19. Now on the merits of the case he raised the following contentions:
(1) University is not questioning the correctness of the order. This submission was made without reference to the letter of the Coordinator dated 24-9-1998 wherein he tried to impress upon the University as well as the Government the need of continuance of this post after rejection orders were issued by the Government on 25-6-1998. Be that as it may, at the same time, I must thank the Government Pleader for not raising the contention that the petitioner has no locus standi to question the correctness of the order being the aggrieved party. Hence, I hold that the petitioners on their own are entitled to question the correctness of the orders of the Government because of the penal consequences meted to them by the irrational orders passed by the Government without depending upon the mercy of the University which is a creation of the State and which has to look at the State Government even for appointment of a Class-IV employee apart from the funds for running its affairs. Though it is claimed that the Universities are autonomous bodies and are entitled to administer their own affairs as these Universities are depending on the grants released by State Government as well as Union Grants Commission, their hands and legs were tied and have neither any independence nor autonoiny whatsoever as aimed in the statute. That being the position enjoined by the University, it is too much to expect on their part to question the correctness of the order of the Government though they are making a fervent appeal that these posts are highly essential for running the center which is a regular one by giving reasons for creation of the posts. Accordingly I find no substance in this contention.
(2)(a) That creation of a post or abolition of a post are matters in the realm of the executive and they form part of the policy of the Slate and the judicial review exercised by the Courts under Article 226 of the Constitution of India cannot be extended to policy matters more so when the policy decision is having financial implications on the Government; (b) The Government cannot be compelled to create any post for regularising the service of an individual or to accommodate an individual (c) The petitioners did not attribute any mala fides against any officer and impleaded them as a party by name to counter those allegations (d) That no legal pleas in support of the relief were raised in the writ petitions. In support of his contention that Judicial interference cannot be extended by the High Court over policy matters he cited innumerable decisions of the Apex Court starting from Sardar Samp Singh v. State of Punjab, AIR 1959 SC 860 to Commissioner, Corporation of Madras v. Madras Corporation Teachers Mandram, . I need not refer all the cases cited by the learned Government Pleader. It is suffice to refer to the decision of a Constitution Bench in N. Ramanatha v. State of Kerala, . It is true that Apex Court said so in Para 14 of the judgment which is as follows:
"The first question which falls for consideration is whether the Government has a right to abolish a post in the service. The power to create or abolish a post is not related to the doctrine of pleasure. It is a matter of Governmental policy. Every sovereign Government has this power in the interest and necessity of internal administration. The creation or abolition of a post is dictated by policy decision, exigencies of circumstances and administrative necessity. The creation, the continuance and the abolition of post are all decided by the Government in the interest of administration and general public."
The next judgment relied upon by the Government Pleader is State of Haryana v. D.R. Sangar, . It is true that a Division Bench of the Supreme Court relying upon the judgment of a Constitution Bench in N. Ramanatha's case (supra) held that "it is not open to the Court to go behind the wisdom of the decision and substitute its own opinion for that of the Government, on the point as to whether a post should or should not be abolished. At the same time, it should be kept in mind that in the same paragraph their Lordships further observed as follows: The decision to abolish the post should, however, as already mentioned to be taken in good faith and be not used as a cloak or pretence to terminate the service of a person holding that post. In case it is found on consideration of the facts of a case that the abolition of the post was only a device to terminate the services of an employee, the abolition of the post would suffer from a serious infirmity and would be liable to be set aside."
20. From this it is clear that the Court is well in its competence to find out whether the decision was taken in good faith or in an arbitrary manner and whether such decision serves the interest of the State, in exercise of its powers of judicial review under Article 226 of the Constitution of India.
21. Be that as it may, me question falls for consideration of this Court would be whether the impugned GO and letter can be treated as a policy decision of the Government. To arrive at a decision, the Court has to look into the Constitutional provisions in that regard. In the Constitution Part VI deals with the States. Under Article 153 there shall be a Governor for each State and under Article 154 the executive power is vested in the Governor and the same shall be exercised either by him directly or through officers subordinate to them. Under Article 163 there shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in exercise of his functions. From these two Articles, it is seen that any policy decision shall be taken by the Governor with the aid and advise of the Council of Ministers and the bureaucrat executive cannot take a policy decision. To substantiate this issue a reference has to be made to the Rules of Business framed by the Government in exercise of its powers under Article 154 of the Constitution of India and also the Secretarial Instructions with regard to the functioning of the Executive. Rule 8 deals with the cases to be brought before the Council of Ministers for decision in accordance with the rules contained in Section II. Section II deals with the procedure to be followed by the Council of Ministers. Under Rule 15 the Chief Secretary shall be the Secretary to the Council. Under Rule 15 in all cases referred to in II Schedule he shall obtain the orders of the Minister In-charge and Chief Minister for bringing the subject for consideration at a meeting of the Council of Ministers. Under Rule 18(1) after obtaining the orders of the Hon'ble Chief Minister, the procedure to bring the subject for discussion before the Council was given and I need not refer the same. Rule 20(1) deals with the power of the Chief Minister to convene the Council for taking decisions on the agenda. Under Rule 20(5) the Minutes of the Cabinet shall be recorded in the form of a decision and copies of the record of the decisions in relevant case communicated to the Secretaries concerned. Under Rule 21(1) when a decision is taken by the Council of Ministers, the Minister concerned shall take action to give effect to the decision. If any deviation has to be made from the decision taken by the Cabinet, such deviation should be got approved by the Cabinet or in case of urgency by the Chief Minister subject to the ratification to be obtained in the Cabinet.
22. In this case, though the matter went up to the Council of Ministers for five times, the Cabinet deferred the subject without taking any decision. Instruction 8 of Secretariat Instructions deals with the functions of the Secretary. The Secretary of any department is a Secretary to the Government and it is his duty to see that policy of the Government is carried out in the department with which he is concerned. Of course, the Secretary is having right to tender necessary advise to the Minister either orally or in a written note at any time before the Minister passes final order on a case. It shall also be the duty of the Secretary to draw the attention of the Minister to the fact that any proposed course of action is contrary to the provisions of any rule or law or is it variance with previous policy adopted by the Government. Under instruction 8(3) if the Secretary intends to take action contrary to the policy of the Government, he is under an obligation to circulate the case to the Minister within 15 days from the date of its receipt from the Minister. From this it is seen that all decisions on policy matter have to be taken by the Cabinet but not by the Secretary. At the same time, it is open to tender necessary advise or bring to the notice of the Minister concerned, if any, errors of fact have taken place in the decision of the Minister. In this case, though the subject went to the Cabinet for more than 5 times, the Cabinet did not take any decision as pointed out earlier. Having received an unsigned, unauthorised and uncalled information dated 23-4-1998 on the University letterhead, the fate of the file has taken a round about turn in its note dated 27-4-1998. As observed supra, though the file is marked to Secretary Higher Education/ Chief Secretary for orders whether the subject placed before the Council of Ministers have to be withdrawn and the proposal be negatived, I find the signatures of the Secretary and CS, but at the same time I am astonished to see that no endorsement was made by any of these two officials whether the course suggested in the note is approved or not. Though the file was marked to CM, it has net reached the CM and the Government issued the impugned order. Further it is not known how the file can be marked to CM directly without routing the file through the concerned Minister who approved the proposal earlier.
23. From this irresistible conclusion, one has to draw that the inpugned GO was made at the instance of the Secretaries who are not authorised or entitled to take any policy decision and I have no manner of doubt to record a finding that these two officers exceeded their brief in violation of the Business Rules and Secretariat Instructions leave about the humanistic approach they are expected to have while dealing with the life of the human beings.
24. In the result, the orders of the Government in G.O. Rt. No.785, dated 25-6-1998 and the letter of the Government dated 21-8-1999 cannot be treated as a policy decision of the Government. Hence, the judgments cited by the Counsel for the Government have no application to the facts of the case.
Issue No. 2:
Though the Government Pleader contended that the Government cannot be compelled to create a post to accommodate an individual or regularise the services of an individual, he did not go to the extent of saying that the Court shall not exercise the power of judicial review to find out whether the decision taken by the Government is in good faith or it is the result of arbitrary exercise of power. Though the Courts held that as long as any decision taken by the Government is in good faith, normally the Courts will be lax in interfering in such decision, but the Courts can lift the veil to find out the real intention of the Government in arriving at the decision whether it is bona fide or illegal. The Courts are expected to set at naught the injustice done to the individual. I am fortified in my view by the observations made by the Supreme Court in Secretary, HSEB v. V. Suresh, . The law Court invariably has to rise up to the occasion to do justice between the parties in a manner as it deems fit. Rescopound stated that the greatest virtue of the law Court is flexibility and as and when the situation so demands, the law Court ought to administer justice in accordance therewith and as per the need of the situation.
25. Viewed from that angle and having seen the note file maintained in the Government for over three years, I have no hesitation to hold that the orders issued in the impugned G.O. cannot be sustained in law. As stated supra, after the various queries raised by the senior bureaucrats were answered, the file had been to the concerned Minister and the Hon'ble Chief Minister twice. From the notings of the political executive, it is seen that the Government agreed to approve the creation of two posts without any additional financial burden on the Government and the expenditure towards their salaries has to be met by the University from the block grants that are being given to the University. On first occasion, the file reached the office of the Chief Minister on 16th December, 1996, but the Minutes of the Hon'ble Chief Minister are not to be found in the file. On the second occasion, when the file was re-circulated to the Hon'ble Chief Minister. The Minutes of the Hon'ble Chief Minister found in Page 39 of note file are extracted hereunder to decide whether the action of the Secretaries in issuing the impugned order is valid in law.
Item No.4-File No.1162/UE.11/95/12341/ CMP/95, Education.
"Sanction of two non-technical posts of Project-cum-Extension Assistant (Non-Techl) and Project-cum-Extension Assistant (Techl) in the Centre for Rural Development and Appropriate Technology, Sri Venkateswara University by meeting the expenditure from the Block Grants without any additional financial commitment to Government either now or in future-Matter to be placed again before the Council of Ministers Approved."
Though the date on which the decision was taken by the Chief Minister is not indicated in the note file, the same was received in Education Department by the Secretary on 2-1-1998.
26. This clinches the issue firmly that the Head of the Council of the Ministers and his Cabinet colleagues have taken a decision to sanction these two posts. Thereafter, the subject was placed before the Cabinet at its meetings held on 15-4-1998 and the Council in their Resolution Nos.128 and 151 of 1998 postponed the subject without taking any decision. Thereafter, as pointed out on the basis of some unfounded information dated 23-4-1998 a fresh note was prepared by the department on 27-4-1998, the concerned clerk not only referred the information received by the Government in the unsigned xerox copy, but also referred the interim orders passed by this Court way back on 13-7-1995 and sought for the orders for withdrawal of the subject from the Council of Ministers and to negative the proposal. Though at para 127 of note file it is stated that the file should be circulated to the Chief Minister through the Chief Secretary, I do not find any visible signs in the file that the file has gone to the Chief Minister, except the word 'CM' was struck off. Further, except the two signatures, if I am right of the Secretary, Higher Education and the then Chief Secretary, no indication is there in the file whether they have approved the proposed action or negatived it. But in para 131 of the note file, it is stated that the file may be sent to G.A. (Cabinet) Department for taking necessary action as per the orders of the Chief Secretary. On the basis of the note, the G.A. (Cabinet) Department agreed to withdraw the subject from the Agenda for the meeting of the Council of Ministers to be held on 15-5-1998 as desired by them. Thereafter, the orders were passed in the impugned Government order. The reasons given in the note file for withdrawal of proposal is after the funding authority expressed its inability to approve the proposal of the University to appoint these individuals as Extension Assistants by downgrading, two posts of lecturers were kept vacant for several years, as on non-teaching core staff was sanctioned at the time of establishment of the Centre. The petitioners approached the High Court by filing the writ petitions and the High Court directed the authorities concerned not to fill up the posts. It is useful to extract the order of the Court dated 13-7-1995.
"Pending further orders on this petition the respondent is directed not to fill up this post which the petitioner holds prior to the impugned order in CERDAT, S.V. University, Tirupati by any other person in case the University Grants Commission grants permission for continuation of the posts."
27. To my mind, the orders should be understood that this Court injected the-
authorities concerned from making any appointment of the outsider in these posts in the event of getting any permission from the University Grants Commission. Hence, this order will not come in the way of the authorities concerned to approve the appointment of these two individuals if they wish to do so. The draftsman by extracting the interim order in the note perhaps intended to bring it to notice of the senior bureaucrats that the High Court injected them from filling up the posts, which is not correct. In fact, this order was passed by this Court way back in July, 1995 and this drafts man refers it in his note dated 27-4-1998, almost three years after the note file started its journey in the Secretariat and the policy making decision is postponed for want of time atleast five times. From this, I have my own feeling that some under currents have passed through for negating the request on one pretext or the other. I am fortified in taking this view from the notings of the Principal Secretary in Para 87 of the note file at Page 33. It is useful to extract the said noting:
"I am not satisfied What Registrar told me and what V.C. had communicated me is at complete variance. Please verify whether the present report and earlier Cabinet note tally on basic facts at least ask the V.C. to discuss."
28. But the Secretary did not point out as to what is the variance found by him in the discussions that had with the Registrar and the Vice-Chancellor. On the basis of this noting, a letter was addressed to the Vice-Chancellor and the contents of his reply were extracted in para 92. The Vice-Chancellor's reply in D.O.No.E-III (4)/ 94-95, dated 25-9-1997 is extracted as hereunder:
"With reference to the letter fourth cited. I have already held discussions with the Principal Secretary to Government (Higher Education) on this issue. Hence, I am to state that the matter may be looked into in view of the urgency of the matter and permanent nature of the Centre so that sanction of the Government is obtained for the two posts requested at the earliest. The entire correspondence is enclosed herewith for ready reference."
29. From this it is seen that the noting of the Secretary is at variance to the request of the Vice-Chancellor that is being made from time to time.
30. The second ground that was shown in para 125 of the note is that CERDAT is a scheme sanctioned by MHRD and it is a time bound scheme with a duration of fifteen months. From the note file and the current file, it is evident that the University was repeatedly representing to the Government that CERDAT is a permanent Centre attached to the Engineering College and it started functioning prior to 1990 and it is not a time bound scheme. The file passed through various stages all these years only on that basis. The first noting in the file is at para 36 to the effect that the petitioners were appointed as Extension Assistants against the vacant posts of lecturers sanctioned for Vocational Course by the University Grants Commission during eighth plan period. In the routine note dated 4-11-1996 at para 41 under point No.3 -Other Such Posts; it is stated that the UGC has sanctioned the following teaching posts in the Scheme for Rural Development and Appropriate Technology.
(i) Professor-1.
(ii) Lecturers-4.
Again this fact is reiterated in para 83 of the note for circulation after the Cabinet postponed its decision thrice, stating that the "CERDAT" is not a project but a permanent Centre attached to the S.V. University and the Centre needs permanent faculty members both technical and non-technical. The Centre has been implementing the projects entrusted to it by HUDCO, APCOST, MHRD, IREP, etc." In para 84 of the note, it is made clear that the Vice-Chancellor has reported that the two posts in which the petitioners were employed are not time bound posts.
31. Again while answering the queries raised by the senior bureaucrats, in the note dated 1-12-1997 in para 102 it is clearly stated that the Vice-Chancellor reported that the Centre for Rural Development and Appropriate Technologies (CERDAT) was setup on 8-3-1994 at the Sri Venkateswara University as an autonomous Centre for imparting teaching and training to youth to enable them to serve the cause of rural development...... The CERDAT is not a project but a permanent center attached to the S.V. University. Teaching, Training, Transfer of Rural Technologies and Extension service are the major activities of the Centre and the Centre needs permanent faculty members both technical and nontechnical. Again the programmes that are being implemented by the CERDAT were given in this paragraph. I find that the statement of the Vice-Chancellor that the CERDAT was established for the first time on 8-3-1994 is factually incorrect. Prior to that date, the Centre is functioning as FCATRD department for a number of years and the name of the Centre was changed to that of CERDAT on that date. But, it was not established on that day as stated by the Vice-Chancellor.
32. In para 103 once again it is pointed out that the Vice-Chancellor reported that these posts are not time bound posts under any Scheme. But, suddenly after three years, the department found that CERDAT is a MHRD scheme with duration of fifteen months and the Scheme was already completed in the year 1994-95 To the persistent queries raised by this Court, neither the Counsel for the University nor the Government Pleader placed any material to establish that the lecturer posts that were referred to are Scheme posts of duration of fifteen months. From the first letter of the University dated 22-8-1994 addressed to the University Grants Commission, it is seen that four lecturer posts sanctioned for the Centre i.e., Institute of Vocational Studies during 1990-91 outside the seventh plan, and two posts of readers and one post of Lecturer or two posts of Lecturers, one post of Reader, one post of Professor and four posts of Lecturers sanctioned under the 8th plan by the University Grants Commission in its letter dated 5-10-1990 are left unfilled, and it is also not in dispute that the University Grants Commission while giving permission for establishing the Centre did not sanction the non-teaching core staff. If these officers are making reference to the commitment of the University Grants Commission to pay the actual salary component of post of one Professor and four lecturers in its letter dated 5-10-1990 nowhere it is stated that the Scheme is for a period of fifteen months. As the paras were not numbered in this letter, I have already referred to the contents of this letter while dealing with the factual background. The University Grants Commission agreed to extend 100% financial assistance not only for the teaching staff, but also for the technical staff, though not sanctioned, either appointed or yet to be appointed against the 7th plan approved posts during the period from 1-4-1990 to 31-3-1992, only up to 31-3-1995 and the University Grants Commission agreed to meet the expenditure up to that date only in the event of the State Government giving an undertaking letter that from 1-4-1995 the recurring liability will be met by the State Government when the posts were sanctioned in October, 1990 and the University Grants Commission agreed to meet the actual salary component of these teaching staff up to 31-3-1995 on condition that the Government takes up the liability from 1-4-1995. I do not know from where this "fifteen months Scheme" came into existence and unfortunately contrary to the notings in the file pointed out supra, the note is prepared for rejection of the request of the petitioners on the ground that the CERDAT itself is a Scheme of fifteen months, which expired in 1994-95. If this is the fact how the State Government is meeting the expenditure after 1-4-1995 and how the Centre is functioning in the University. No one has applied their mind to the notings that were made in the note file from time to time for over three years and a new ground which was never came up for consideration in these three years was invented for rejecting the request of the petitioners by stating that the proposal from the University is misleading and misrepresenting. Had the Government authorities referred to the detailed note of the Co-ordinator dated 26-7-1995 which was annexed to the first letter of the Registrar seeking sanction of the posts and the subsequent resolution passed by the Execulive Council dated 5-7-1996; the Minutes of the meeting of the members of the Advisory Committee of the CERDAT dated 26-5-1998 and the consequential letter even dated 24-9-1998 addressed by the Co-ordinator to the Registrar apart from the letters of the Vice-Chancellor dated 16-5-1997 and 25-9-1997 and the voluminous correspondence on this subject, they would not have recorded such a finding. I am at loss to understand whether the University misled and misrepresented the issue or the officials of the Government misdirected themselves to the issue in rejecting the request of the University, more so, after the subject was placed before the Cabinet for five times. Curiously, in the Government order issued consequent to the orders passed by the Secretary to Higher Education and Chief Secretary, new reason was also added stating that if these posts are sanctioned, the Government has to incur the expenditure of Rs.1.13 lakhs per annum towards the payment of their salaries. Though the Registrar in the first letter sought for the release of such amount to meet the salary components of these two individuals, the very first note emanated from the department has clearly taken a stand that the posts will be sanctioned without any financial commitment from the Government and on the condition that the University meets the salary components of these two individuals from the block grant that is being given to the University. The Co-ordinator having come to know of the rejection orders, in his letter addressed to the Registrar on 24-9-1998 made a fervent appeal to the Registrar to bring it to the notice of the Government that these two posts do not belong to MHRD Scheme and they are required to run the regular activities of P.G. Diploma in Rural Development and Appropriate Technologies training and extension works of the Centre and sought for reinstatement of these two individuals. The petitioners approached this Court questioning the impugned orders, and this Court not only gave the interim direction to re-consider the issue in the light of the letter of the Co-ordinator dated 24-9-1998, but also made the same absolute after rejecting the contention of the University Counsel that the posts are under time bound Scheme. Even then the Officers in the Government are not prepared to rectify the mistake committed by them by having a re-look at the matter and on the other hand addressed another letter dated 21-8-1999 stating that the appointment itself is irregular and against the 8th plan norms. It is also stated in the said letter that the appointments were made by the University without obtaining prior permission either from the University Grants Commission or from the State Government. They also reiterated their stand that the incumbents were appointed against the time bound scheme which was over in 1994-95. But it is not known as to on what basis the Government has taken this stand inspite of the innumerable letters and representations made by the University authorities that the CERDAT is not a MHRD Scheme and it is functioning as a permanent Centre attending to the functions mentioned supra.
33. Now, in this letter, the Government raised two more issues : The first objection is that the appointment itself is irregular and against the 8th plan norms. But no material is placed to show that the appointments are against the 8th plan norms and whatever letters that were received from the University Grants Commission sanctioning the amounts for CERDAT were already referred by me earlier. What is in mind of the Officer could not be culled out from the note file that ran for four years and this reason has suddenly appeared in this letter. Perhaps the Government is saying that the appointments are irregular on the basis of a noting made by the Chief Secretary at Paragraph 58 dated 6-12-1996 which is as under:
"In my view the action of the University is wrong on two counts: (a) Teaching posts cannot be converted into non-teaching posts, (b) The manner of recruitment was irregular."
34. I do not know what comment has to be made on the objections raised by an Officer of the rank of a Chief Secretary. Time and again, the University brought to the notice of the Court that while sanctioning the teaching posts, the University Grants Commission did not grant non-teaching staff to run the Centre. In the normal course University Grants Commission is expected to approve the creation of these least posts in the light of the orders of the University Grants Commission dated 5-10-1990 wherein the University Grants Commission agreed to incur the salary component of the technical staff that are required to run the Centre till 31-3-1995. Hence the University authorities would have straight away asked the University Grants Commission to sanction the two posts.
35. Be that as it may, for a mistake committed by the authorities in asking for conversion a lecturer posts, the request of the University to the State Government in its first letter itself for sanction of these two posts in the light of the difficulties experienced by the department, cannot be turned down by the Government without examining the issue whether actually there is a need for creation of these two posts for smooth functioning of the Centre or the University is trying to create these posts to accommodate any individual. I am reminded of a Telugu proverb that "for a hungry child the mother won't give food and at the same time the mother neither gives food nor allow the child to beg." That is how the officials at Government level are functioning. I do not know what is the intention of the authorities in establishing the faculties or Centres without giving necessary staff and it is not known how these officers are thinking that the Schemes that are formulated by them will achieve the results underlying the scheme without sanction of necessary staff.
36. The second objection is that the recruitment is irregular. Perhaps, the Chief Secretary may be referring to the aspect that the candidates were neither drawn from the employment exchange nor called for through an advertisement. I have seen the notification issued by the University dated 19-1-1994. A copy of the notification was not only marked to the Registrars of all the Indian Universities and University Grants Commission, but also to the Director, Doordarshan T.V. Centre, All the India Radio, Mr. A.V. Devarajan, Correspondent, The Hindu, the General Manager-cum-Chief Editor, Employment News, Government of India and all the colleges and departments that are functioning in the University apart from so many agencies. But the Counsel for the University submitted that no advertisement was given in the daily newspapers. He did not place any material whether this was announced by the electronic media in their employment news or not. Be that as it may, this issue was raised by the Chief Secretary at the earliest and same was taken note of, by the Minister concerned and the Chief Minister while agreeing to create these two posts without financial commitment and that cannot be a ground now to reject the request of the University. At any rate, the petitioners cannot be found fault if any mistake was committed by the University in not properly advertising. Further it should be also kept in mind that no affected individual questioned the notification issued by the University on the ground of non-publication of the notification. It is also interesting to note that the self same Government ratified the irregular appointments of four Assistant Director-cum-Lecturer and one Co-ordinating Officer in Directorate of Distance Education in G.O. Rt. No.1197, dated 23-11-1999 and so many others in G.O. Rt. No. 831, dated 2-7-1999. In this G.O. one S. Srinvasulu, Cartographer in Department of Geology was appointed as a lecturer by re-designating the post as Cartographer-cum-Lecturer and gave UGC scale to him; one P. Raghunatha Reddy, Placement Officer in the School of Business Management was converted and appointed as a Lecutrer; and Dr. N. Yashodamma, Curator, Botany Department was converted and appointed as a lecturer. It is surprising to see that these conversions were given on the representations made by the individuals, but not by the University. In this case, the University was pleading time and again the need for creation of these posts for smooth functioning of the department. But the pleas made by the University fell to the deaf ear of the officers. I do not know how the Government can take different stands in case of different individuals. When the post of Lecturer cannot be lower down to the post of an Extension Assistant, I do not know how the Government permitted the conversion of a lower post to a higher post and gave time scale of pay to these individuals. Still, the bureaucracy is under the impression that they can pass orders at their whims and fancies forgetting that they are functioning in a democratic form of Government where every one is bound by rule of law under Article 14 of the Constitution of India on which the entire edifice of the democratic set up was built up in this country. The very conduct of the officers in taking different stands at different points of time to confer undue favour on some and untold miseries on some is highly deplorable and runs counter to the scheme envisaged under Article 14 of the Constitution of India-equality before law and equal protection of laws to all.
37. In one word, the orders in G.O. Rt. No.785, Education, dated 25-6-1998 as well as the letter dated 21-8-1999 are the result of not only non application of mind, but also contrary to the business rules as well as the Secretariat instructions as the decision was taken at the Secretary level without obtaining the orders of the Cabinet as required under the business rules after the matter was ceased by the Cabinet.
38. In the counter, the respondents have taken a stand that ban on recruitment was imposed under the provisions of the Act 2 of 1994. But, in the note file, it seen that they have taken the stand that Act 2 of 1994 is not applicable. At any rate, the issue was not dealt with by the Government at any stage with reference to the Act 2 of 1994. Hence, they cannot press the same at this stage. The said contention is an after thought to save itself from the inconvenient position in which it was placed. Accordingly, that contention is also rejected.
39. It the light of the foregoing discussion, the G.O. Rt. No.785, Education, dated 25-6-1998 and letter No.1162/UE.I.1/ 1995, dated 21-8-1999 are quashed as they are illegal, arbitrary and the matter is remitted back to the Government to re-consider the request of the University and pass appropriate orders for re-engagement of the petitioners as their services were terminated by the University on the ground that the required approval was not received by it, to avoid future complications, in the light of the observations made by this Court within four weeks from the date of receipt of a copy of this order.
40. Coming to the conduct of Smt. Chandrakala, (petitioner in WP No. 14333 of 1995 and WP No.31471 of 1998) she seemed to have been initially appointed as an Attender in 1977, and thereafter she was appointed as Junior Assistant on transfer. In the meantime, she seemed to have improved her educational qualifications and she applied for the post of Extension Assistant and got selected. As the efforts of the Vice-Chancellor in getting approval of the appointment did not yield the fruitful results, to avoid future complications, her services as Extension Assistant were terminated and she was reverted back to the substantive post of Junior Assistant which she was holding prior to her appointment as Extension Assistant by his proceedings dated 30-6-1995. But the petitioner (Smt. Y. Chandrakala) neither reported back to the duty as a Junior Assistant nor applied for leave all these years. It is only at the verge of completion of five years of absence, she hurriedly made an application to the Registrar to permit her to report to duty on 10-6-2000 and at the instance of the Court she was admitted to duty by the respondent-University.
41. Every citizen of this country should know that however high he/she may be or howsoever influential he/she may be, they are not above the law and her conduct cannot be appreciated by the Court. Now, it is for the University to take final decision after following the principles of natural justice and in accordance with the rules governing the subject on her unauthorised absence from duty.
42. Accordingly, WP Nos.31471 and 32130 of 1998 are allowed and WP Nos.14333 and 14334 of 1995 are closed. No order as to costs.