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1983 DIGILAW 1 (GAU)

Siddheswar Saikia v. Gauhati University & Others.

1983-01-04

B.L.HANSARIA, K.LAHIRI

body1983
Lahiri, J.- The core question is whether the statutory right of promotion under "The Gauhati University Rules for Personal promotions of University Teachers, 1978", for short "the Rules", was denied to the petitioner on improper construction of "the Rules" and in violation the principles of Natural Justice. 2. To determine the question it is necessary to set out the relevant facts leading up to this application under Article 226 of the Constitution. The parties to the proceeding are, a person having academic rank on one side and a University on the other. Ordinarily a decision taken by a University ought not to be disturbed as the University is a statutory autonomous body which need be allowed to play its independent autonomous rule with amplitude of freedom. However, if grave injustice or blatant violation of law is perpetrated resulting in injustice, especially to a member of the teaching staff, the court should not put its power into sheath. 3. Dr. Saikia, the petitioner, obtained his M.A. Degree from the University of Gauhati in Education with special paper in School Organisation in 1953. He was appointed Lecturer in Education and B.T. by the University of Gauhati and he joined on 5.7.56. While serving as a Lecturer he was appointed ad-hoc Reader in Education and B.T. in the University. He joined on 1.8.72 as ad-hoe Reader. On 23.8.72 his intial pay as ad-hoc Reader was fixed at Rs. 1,050/- plus other admissible allowances. The petitioner was awarded by the Government of India a fellow­ship to work on a Research Project styled as "A follow-up Study of the Teachers-In-Training" and he made research work for two years. Thereafter, he published a paper. On the basis of All-India competition he was awarded Imperial Relation Trust Fellowship of the United Kingdom for which he went to England in 1968, to carry out and conduct research on the subject styled as "A Comparative Study of Teachers Training in the United Kingdom and India." On successful completion of his research work he was awarded "Associateship” of the Institute of Education" by the University of London. He has had to his credit a number of articles published in various papers and journals. He is author of many text books on "Teacher Edu­cation" and some of them have been included as Text Books in at least two Universities. He has had to his credit a number of articles published in various papers and journals. He is author of many text books on "Teacher Edu­cation" and some of them have been included as Text Books in at least two Universities. He has written the History of Education in India, School organisation for Degree Standard and other books. He was a research Scholar and later became a Research Guide. He had, at all relevant time, all the qualifications required for appointing as professor in Education in Gauhati University. On or about 2.9.78 Gauhati University framed a set of Rules styled as "Gauhati University Rules for Personal Promotions of University Teachers of 1978." We ex­tract the relevant provisions of the Rules. 1. "(a) The scheme of personal promotion shall apply to the teachers of outstanding ability as a teacher and researcher." (b) * * * "2. A Lecturer or a Reader holding a permanent and sub­stantive post who has completed six years of service and claims that he had done outstanding work and fulfils the minimum qualifications laid down by the university for Reader of Professor as the case may be offer himself for assessment. If he is found to have done outstanding work he should be given the next scale and rank which should be personal to him. In case he is not found fit at the time of the first assess­ment, he may offer himself again for assessment after every two years. Similarly, a Lecturer or a Reader who has reached the maximum of the scale may also offer himself for assessment for promotion to the next scale. For the purpose of personal promotion there should be no limit to the number of posts of Readers and professors within the total sanctioned strength of the Department"' "3. A teacher who has acquired the prescribed qualifications for personal promotion may submit an application in quadruplicate in a prescribed form giving his complete biodata together with copies of publications to the Regis­trar through proper channel within 31st December of the year". "4. The applications received on the prescribed date shall be sent by the Registrar to three experts to be nomi­nated by the Vice-Chancellor from out of a panel recom­mended by the Academic Council for assessment. If at least two experts recommend the application for personal promotion, the case shall be placed before the statutory Selection Committee as soon as possible”. "4. The applications received on the prescribed date shall be sent by the Registrar to three experts to be nomi­nated by the Vice-Chancellor from out of a panel recom­mended by the Academic Council for assessment. If at least two experts recommend the application for personal promotion, the case shall be placed before the statutory Selection Committee as soon as possible”. "7. Only such teachers of the University shall be considered for personal promotion who fulfil the conditions as laid down in rule 2 above". 10. The ad-hoc professors and ad-hoc Readers shall also be eligible to be considered under these rules". [Emphasis added] 4. In due course "He Rules" came into operation. There­after, by a notice dated 19.3.79 the University invited eligible candidates for personal promotion to submit their application in the prescribed form within March 31, 1979. The petitioner submitted his application in the prescribed form within the pre­scribed period stating in clear terms that he was appointed Lecturer on 4.7.56 and held the post till 31.7.72 where after he was promoted as an Ad-hoc Reader from 1.8.72 and worked in the said capacity till 30.3.79. After a lapse of two years the petitioner was asked to appear for interview before the Selection Committee. Accordingly, he appeared and the Selection Committee, duly appointed by the University recommended the petitioner for appointment as professor. Thereafter, the Executive Council appointed others under the personal promotion Scheme, but did not appoint the petitioner. The petitioner made several repre­sentations to consider his case but to no avail. After exhausting all his remedies be came up before this Court and claimed that the Respondents had denied him his statutory right to promo­tion under "the Rules". 5. The Respondents appeared and admitted that the Selection Committee recommended the petitioner for appointment as professor in its meeting held on 24.2.81, However, they claimed that after making the recommendation, on a report received from a candi­date, the Selection Committee held another meeting on 15.5.81 and held the petitioner as ineligible for the reason that he was holding an Ad-hoc post on the date of submission of his application and, as such, he did not fulfil the conditions of Rule 2 of 'the Rules'. According to the Respondents no Ad-hoc Reader is eligible to be considered under "the Rules" and as the petitioner was an Ad-hoc Reader on the data of making the application so he was not eligible for consideration under "the Rules". The Respondents admitted that the petitioner was appoin­ted as Ad-hoc Reader on 1.8.72 and worked as such till 31.3.79. The petitioner was appointed Reader on permanent basis and he joined the post on 3.5.79. The Respondents also admitted that a Lecturer or Reader holding a permanent and substantive post who had completed 6 years of service having other requisite qualifications was eligible to offer himself for assessment under "the Rules". The respondents claimed that "the Rules" were framed for promoting deserving persons holding a permanent and substantive post and an Ad-hoc Reader was not eligible for consideration under "the Rules". It has been contended by the Respondents that the eligibility of the petitioner was challenged after the Selection Committee had interviewed and recommended the name of the petitioner. Therefore, the Selection Committee met again on 15.5.81, reconsidered the question of the eligibility of the petitioner and held that, as the petitioner was holding an Ad-hoc post at the time of submission of his application, he did not fulfil the conditions under Rule 2. We extract the relevant decision of the Selection Committee dated 15.5.81:- "Dr. Siddheswar Saikfa, Reader in Education, has been recommended by the Selection Committee for the post of Professor on personal promotion Scheme. Subsequently it has been detected that he was holding an Ad-hoc post at the time of submitting the application and as such, he does not fulfil the condition as given in rule 2. Under the above background his name cannot be recommended to the E.C. (Meaning the Executive Council). [Emphasis added] The Respondents claimed that the decision "was based on the basic fact that the petitioner did not fulfil the primary requirement of holding a permanent post on the date he made his application...." The University contended that the petitioner was not entitled to any hearing on the facts and circumstances of the case before the Selection Committee reviewed its order. In Affidavit-in-reply to the supplementary affidavit filed by the petitioner, the Respondents stated. "That the last date of recei­ving applications for the first batch was on 31.3.79. Dr. Saikia applied on 28.3.79 and he was an Ad-hoc Reader since 1972. In Affidavit-in-reply to the supplementary affidavit filed by the petitioner, the Respondents stated. "That the last date of recei­ving applications for the first batch was on 31.3.79. Dr. Saikia applied on 28.3.79 and he was an Ad-hoc Reader since 1972. He was not eligible as he did not hold any permanent post which is necessary as per condition of "the Rules". Dr. Saikia, the petitioner, was made permanent only on 1.4.79".In para 5 thereof, the University stated: "That the last date of receiving application for the second batch was 1.9.81. All the Ad-hoc Readers inclu­ding Dr. Saikia (Petitioner) and Dr. T. D. Goswami were made permanent only on 1.4.79 and as such second time both are qualified i.e. both held a permanent post on the relevant date and have more than (9 nine) years of service.....". 6. Now, let us consider the contentions of the petitioner. The first contention is that the Selection Committee was a statutory body and could exercise its powers and function within the limit of the provisions creating it. According to the petiti­oner, the Selection Committee having recommended the petitioner for the post of Professor, acting under "the Rules", had no power of review, recall or revise the order. Mr. R.C. Choudhury, learned counsel for the University has failed to show that the Statutory Body was conferred any power and jurisdiction to review or revise its own decision. Under the circumstances, we are constrained to hold that Selection Committee had no jurisdiction vested in it by law to review its order and there­fore, the impugned order dated 15.5.81 is liable to be set aside. Under such circumstances, the Executive Council of the Univer­sity is bound to consider the recommendation made by the Selection Committee on 24.2.81. 7. The second contention has also strong force. The selec­tion Committee admittedly recommended the name of the peti­tioner in accordance with the provisions of "the Rules", the members of the Selection Committee were fully alive to the provisions of the Rules. The application of the petitioner clearly indicated that he was appointed Lecturer in 1956, was holding a permanent and substantive post since 1956 and he was an ad-hoc Reader on the date of presenting the application. The application of the petitioner clearly indicated that he was appointed Lecturer in 1956, was holding a permanent and substantive post since 1956 and he was an ad-hoc Reader on the date of presenting the application. The Selection Committee, it appears, was justified in holding that the petitioner was eligible for consideration under the Rules' in view of the provisions of Rule 10 of "the Rules", which confer a statutory right to an Ad-hoc Reader to have his case considered under "the Rules". If in fact any other candidate had raised any question it should have been left for consideration by the Exe­cutive Council, and, the Selection Committee could not have taken note of that under "the Rules". At least there is no pro­vision in 'the Act' or 'the Rules” empowering the Selection Committee to reconsider its decision. In any view of the matter, the petitioner contends that before taking the objection into consideration he should have been given a reasonable opportunity of showing cause against the alleged complaint of the candi­date. Even the name of the candidate has not been disclosed to us nor do we find the contents of his complaint. Admittedly, the so-called complaint was considered ex-parte. It was a quasi-judicial proceeding in which the Selection Committee deprived the petitioner of his statutory right on the complaint of a so-called candidate and admittedly the petitioner was not afforded any opportunity to show cause. As such, the decision of the Selection Committee made on 15.5.81 must be declared to be invalid in law as violative of the basic principles of natural justice. 8. Be that as it may, let us consider the next contention of the petitioner. The petitioner contends that the sole object of the Rules is to do away with the archaic methodology of promotion based on seniority and to provide injection or incentive to the University teachers having outstanding abilities as teachers and researchers. The petitioner contends that the intention of the framers of the Rules is to grant incentive to the Lecturers and the Readers holding a permanent and substantive post for 6 years, vide Rule 2. However, the prime consideration is out­standing work and acquisition of the requisite qualification for the higher post. However, any teacher who has acquired the prescribed qualification for personal promotion may submit his application for consideration, vide Rule 3. However, the prime consideration is out­standing work and acquisition of the requisite qualification for the higher post. However, any teacher who has acquired the prescribed qualification for personal promotion may submit his application for consideration, vide Rule 3. In the case of a teacher, the requisite qualification prescribed under Rule 2 is a must. Similarly, we find that in Rule 7 it has been clearly stated that: "Only such teachers of the University shall be consi­dered for personal promotion who fulfil the conditions as laid down in rule 2 above." [Emphasis added] The petitioner contends that insofar as a Lecturer or Reader is concerned, holding a permanent and substantive post is 'sine qua non' of his eligibility. Similarly in Rules3 and 7, the applicant must fulfil all the conditions laid down in Rule 2, namely, he must hold a permanent and substantive post. The petitioner contends that insofar as Ad-hoc Professors and Ad-hoc Readers are concerned, Rule 16 specifically omits that they are to fulfil the condition laid down in Rule 2. It is a significant omission. According to the petitioner, in Rule 10 the expressions "who fulfil the condition as laid down in Rule 2" are conspicously absent. As such, all Ad-hoc Professors and Ad-hoc Readers are eligible to be considered under 'the Rules' even if they do not hold any permanent and subs­tantive post. Let us consider the contention. It appears that the rule making authority considered holding of a permanent and substantive post as essential requirement for a Lecturer or a Reader and also for the Teachers. They completely left out the case of Ad-hoc Professor Ad-hoc Readers and made a sepa­rate provision for them. The Ad-hoc Professors and Ad-hoc Readers could have been included in Rule 2 bit were not in­cluded. The reason is obvious. They were made a class by themselves and a separate Rule was framed for them. In Rule 19, which is specifically meant for Ad-hoc Professors and Ad-hoc Readers, the Rule making authority could have included the expression "who fulfil the condition as laid down in Rule 2", but did not. Is it possible for us, or as a matter of that for anybody, to add words into Rule 10? In our opinion an Ad-hoc Pro­fessor or an Ad-hoc Reader is also eligible. Is it possible for us, or as a matter of that for anybody, to add words into Rule 10? In our opinion an Ad-hoc Pro­fessor or an Ad-hoc Reader is also eligible. The basic reason for fra­ming Rule 10 in the manner appears to be that a brilliant person having extraordinary qualification may be directly appointed as Ad-hoc professor or Ad-hoc Reader but should not be deprived of the benefit of "the Rules". Similarly, persons having exceptional qualities if promoted as Ad-hoc Readers or Ad-hoc Professors, should not be deprived of the benefits of "the Rules". These were the basic considerations for which the University did not provide in Rule 10 that they should bold permanent and substantive posts for 6 years and above. In our opinion, the provision of Rule 10, if read separately as well as conjointly with other provisions of "the Rules" clearly indicates that Ad-hoc professors and Ad-hoc Readers are always eligible for consideration if found to be qualified for promotion to a higher post or scale. In Rule 10, the Rule making authority has intentionally omitted to include "on fulfilling the conditions laid down in Rule 2". As such, all Ad-hoc Professors and Ad-hoc Readers are eligible for consi­deration under "the Rules". It is difficult to construe the provision of Rule 10 by putting certain words in it. It is not the rule of construction. We have considered the object of the Rule which grants benefit of personal promotion to teachers of outstanding abilities. An Ad-hoc professor or Ad-hoc Reader may have outstanding ability as a teacher or researchers. Why should such a person be deprived of the benefit? These were the reasons why Rule 10 was specifically made for Ad-hoc Professors and Ad-hoc Readers and the Rule does away with the requirement of the qualifications laid down in Rule 2 of "the Rules". Under these circumstances, we are constrained to hold that the Respondents misconstrued the provisions of the Rules and held the petitioner ineligible. In our opinion, Ad-hoc professors and Ad-hoc Readers have been conferred the right to be considered under the Rules without any reservation. As such, we cannot impose any conditions in Rule 10 of "the Rules". 9. Under these circumstances, we are constrained to hold that the Respondents misconstrued the provisions of the Rules and held the petitioner ineligible. In our opinion, Ad-hoc professors and Ad-hoc Readers have been conferred the right to be considered under the Rules without any reservation. As such, we cannot impose any conditions in Rule 10 of "the Rules". 9. The holding of the Selection Committee that the peti­tioner was ineligible for promotion under "the Rules", as he was an Ad-hoc Reader on the date he made the application and as such was not holding a permanent post on that date, is seriously supported by the respondents. Rather, that is the main ground on which the Respondents support the impugned order of the Selection Committee. Let us scrutinise the contention of the Respondents to find out as to whether it is a just and true cons­truction of "the Rules". Rule 10 expressly makes the Ad-hoc Readers eligible for promotion under "the Rules." Can an Ad-hoc Reader hold a substantive and or permanent Ad-hoc post? Even Mr. Choudhury, learned Counsel for the Respondents has failed to show that under the Gauhati University Act or any Rules, Regulation or Orders made or framed there under, an Ad-hoc Reader, as such, can hold a permanent and/or substantive post. A "Reader" and "Ad-hoc" is one appointed for a special purpose. The term "Reader" and "Ad-hoc" means for a special purpose or appointed under special contingency. There cannot be any perma­nent and/or substantive post of on "Reader Ad-hoc." and, as such, the appointee cannot hold permanent and/or substantive post of Reader Ad-hoc under any situation. Therefore, if we construe Rule 10 to mean that a Reader Ad-hoc must hold a permanent and substantive Ad-hoc post, in our opinion, we shall have to treat Rule 10 as otiose, which is not permissible. We are of the firm opinion that Rule 10 confers a statutory right to an Ad-hoc Reader and makes him eligible for promotion under "the Rules". The very purpose of introduction of Rule 10 is to make the Ad-hoc Professors and Ad-hoc Reader eligble for promotion. Under these circumstances, we are constrained to hold that the holding of the Selection Committee that an Ad-hoc Reader was ineligible for promotion under "the Rules", was reached on improper construction of Rule 10 of "the Rules" and the same is liable to be set aside. 10. Under these circumstances, we are constrained to hold that the holding of the Selection Committee that an Ad-hoc Reader was ineligible for promotion under "the Rules", was reached on improper construction of Rule 10 of "the Rules" and the same is liable to be set aside. 10. The petitioner contends that he was eligible to be considered for promotion under Rule 10 read with Rule 2 of "the Rules". Admittedly he was appointed Lecturer and joined the post on 4.7.56. In his application for personal pro­motion he had clearly mentioned that he held the permanent and substantive post as Lecturer from 1956 to 1971 and while holding the said post he was appointed Ad-hoc Reader from 1.8.72 and continued to work in the said capacity till 31.3.79. True it is that the petitioner was working as Reader Ad-hoc but he held the permanent and substantive post of Lecturer all the while. As such, at all relevant time the petitioner was hol­ding a permanent and substantive post although he was Reader Ad-hoc at the time of filing the application for promotion. This position is undisputed and appears clear from the records of the case (vide application of the petitioner for personal promo­tion). Even the Respondents in their affidavit-in-reply to the supplementary affidavit admitted that the petitioner had more than 9 years of service on 1.9.81 in a permanent and substan­tive post. Therefore, on the own admission of the Respondents in their affidavit-in-reply to the supplementary affidavit the peti­tioner had served more than 6 years in a permanent and subs­tantive post. Under these circumstances, we are constrained to hold that the decision of the Selection Committee was rendered without considering the relevant service record of the petitioner and based entirely on misconstruction of Rules 10 and 2 of "the Rules". Even if we construe that the qualifications set forth in Rule 2 are also applicable in respect of Ad-hoc Reader, we find from the records that the petitioner was holding perma­nent and substantive post of a Lecturer and had completed more than 6 years even on the date of making of the applica­tion. As such, according to reason, experience and on true construction of the Rules we have no hesitation in concluding that Abe petitioner was eligible for consideration under "the Rules". As such, according to reason, experience and on true construction of the Rules we have no hesitation in concluding that Abe petitioner was eligible for consideration under "the Rules". Further, we find clear admission of the University in Paragraph 5 of their Affidavit-in-Reply to the Supplementary Affidavit of the petitioner (at page 125) that the petitioner was holding a permanent post well over six years, at all relevant time. Under these circumstances, we have no hesitation in hol­ding that the impugned order of the Selection Committee dated 15.5.81 must be set aside. 11. Let us consider the question from another angle to adjudge the validity of the impugned order of the Selection Committee. A perusal of Rule 3 shows that every teacher acquires qualification by the 31st of December every year. The crucial date for determination of the qualification is the 31st day of December every year. The said date cannot be altered, changed or modified. The Respondents committed grave error in assuming that they had power and jurisdiction to alter the date as they liked. The Respondents contend that the petitioner was to acquire the qualification on the date of the application. This was obviously wrong. In our opinion, the date of qualification could not be changed by the University in view of the provisions of Rule 3. In our opinion, the date of requisite qualification for pro­motion was on December 31, 1978 and not on 1.4.79. For the reasons alluded, we hold that the petitioner was duly qualified for consideration, as he held a permanent and substantive post of Lecturer on 31.12.78 However, in the instant case the application was considered on 24.2.81. As such when the petitioner was qualified for promotion on 31.12.78, 31.12.79 and 31.12.80, the Se­lection Committee had no jurisdiction to declare the petitioner as ineligible. When the application for promotion could not be taken up during the year 1979 and it came up as late as on 24.2.81, it was the bounden duty of the selection Committee to consider whether the petitioner had the requisite qualifications as on 31.12.78, 31.12.79 and 31.12.80 and could not have rejected his application holding that he was ineligible for promotion. Under these circumstances the selection Committee had no power or jurisdiction to declare the petitioner as ineligible on 15.6.81 when at all relevant time the petitioner was an eligible candi­date. Under these circumstances the selection Committee had no power or jurisdiction to declare the petitioner as ineligible on 15.6.81 when at all relevant time the petitioner was an eligible candi­date. In the result, we hold that the petitioner was holding a permanent and substantive post at all relevant time while he was performing his .duties as a Reader Ad-hoc. 12. Mr. R.C. Choudhary, learned Counsel for the Respon­dents has tried to wriggle out from a difficult position when confronted with the provision of Rule 10 of “the Rules" and its vitable plain construction and has made endeavour to meet the same contending that the said Rule could not be applied in the instant case as the Rule deals with confirmation only and it has no relation with promotion. Learned Counsel submits that an ad-hoc Professor has no promotional post to look up. It is well-nigh impossible for us to give such a strained and constricted construction to the Rules as we prefer to give a plain meaning to the Rules which accords with the object of the Rules and the purpose sought to be achieved by the Rule making authority. We find that "the Rule" deals with Promotions and has nothing to do with confirmation. Further, learned Counsel founded his argument on a wrong base as promotional avenues of professor Ad-hoc are very much there. We find that these exist posts of professor (Senior Grades and Professor of Eminence in the University. We would refer, in this context, to Memo No. F-4U/74-U.I. dated New Delhi, the 2nd November, 1974 issued by the Government of India, Ministry of Education. We find, therefore, no merit in the contention. We hold that Rule 10 deals with promotions of Professor Ad-hoc and Readers Ad-hoc. 13. For the foregoing reasons we hold that the impugned order dated 15.5.81 rendered by the Selection Committee is invalid and the same is quashed. We hold that the petitioner was eligible for promotion under ''the Rules" and the Exe­cutive Council is bound to consider the recommendation made by the Selection Committee on 24.2.1981. 14. These are the reasons why we accepted the petition by our order dated 6.12.82 and directed the Respondents to give effect to the recommendation of the Selection Committee dated 24.2.81 and to place the said recommendation before the Execu­tive Council of the University within one month from the date of delivery of the judgment. 14. These are the reasons why we accepted the petition by our order dated 6.12.82 and directed the Respondents to give effect to the recommendation of the Selection Committee dated 24.2.81 and to place the said recommendation before the Execu­tive Council of the University within one month from the date of delivery of the judgment. Accordingly, we direct the Respon­dents to place the report of the Selection Committee dated 24.2.81 before the Executive Council of the University within one month from today for its consideration. 15. As a person of academic rank has to run from pillar to post, suffer miseries for so many years due to the lapses of the University, and, also in view of the fact that the petitioner is a respectable teacher and had to incur unnecessary expenditure in the legal proceedings, we award him a token cost of Rs. 1,001/-payable by Respondent No. 1, Gauhati University. In fine, we observe that we have been assured by the petitioner that he would devote all his energies to impart education, to the best of his ability, forget and pass over his grievances against the University. We hope and trust that the petitioner shall undoubtedly abide by the promise made by him before us.