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Allahabad High Court · body

1983 DIGILAW 108 (ALL)

Rajendra Singh v. University of Gorakhpur

1983-02-01

DEOKI NANDAN

body1983
JUDGMENT Deoki Nandan, J. - This is a Plaintiff's Second Appeal who was a clerk in the University of Gorakhpur, the first Defendant-Respondent. His services were terminated by a notice dated the 31st October, 1967, by the Defendant-Respondent No. 2, who was, at that time the Registrar of the Respondent University. The suit was for a declaration that the said termination of the Plaintiff's service was illegal and void, and that the Plaintiff still continues to be in the service of the University as an Office Assistant, and for recovery of Rs. 198.33 p. as salary and dearness allowance from the 1st December, 1967 to the date of suit, and pendente lite at the rate of Rs. 175/- per month. 2. On the pleadings of the parties, two points were raised at the trial. Firstly, the Plaintiff claimed that, although he was originally appointed as a temporary clerk on April 12, 1962, his appointment became permanent on the 15th April, 1964, and could not, therefore, be terminated without any fault. Secondly, it was claimed that the only authority competent to terminate the Plaintiff's services was the authority competent to appoint, namely, the Executive Council of the Respondent University and that the Registrar had no such power. The trial Court decreed the suit and declared that the termination of the Plaintiff's services was illegal and void, and that he continued to be in the service of the Respondent University as an Office Assistant. The decree for recovery of Rs. 198.33 p. as salary up to the date of suit was also passed. The claim for pendente lite salary at the rate of Rs. 175/- was dismissed with the observation that, though entitled to recover the same, that relief could not be granted because the Plaintiff had not paid Court-fees and may bring a fresh suit for the same. 3. The lower appellate Court allowed the appeal of the Respondent University and dismissed the suit in its entirety. The lower appellate Court held that the Plaintiff was a temporary employee of the University, and, since he was appointed not by the Executive Council but by the Registrar, the Registrar was within his rights to terminate his services, although the lower appellate Court also found that under the Gorakhpur University Act the Registrar had no power of appointment of the employees of the University and had no power of terminating their services. 4. 4. The power to appoint the officers, teachers and other servants of the University, to define their duties and the conditions of their service and to provide for the filling of casual vacancies in their posts is conferred by Clause (f) of Sub-section (1) of Section 21 of the Gorakhpur University Act, 1956, on the Executive Council. Although authorised to delegate its powers, under Sub-section (5) of that section, the Executive Council does not appear to have delegated that power of appointment to any Officer or authority of the University. There is no specific provision under the said Act conferring the power of dismissal or removal from, on termination of the services of any of its employees on any other Officer or body and consequently, as held by the lower appellate Court, the power of dismissal or removal from service goes with the power of appointment in accordance with the provisions of Section 16 of the General Clauses Act. There is no dispute between the parties on this point. 5. The Plaintiff stated under Order 10 Rule 2 of the CPC on the 3rd October, 1968, vide Paper No. 27-Ka of the lower Court record, that his appointment was made by Sri. K.G. Majumdar, the Registrar of the University. His counsel further stated, vide-Paper No. 60-Ka, that the grounds on which the appointment of Dr. Bholendra Singh, Defendant No. 2 (who had terminated the Plaintiff's services) as Registrar was challenged, were not pressed. 6. The record also shows that the Plaintiff was appointed by the Registrar. The first order appointing the Plaintiff as a temporary clerk-cum-typist, Ext. A-4 is dated April 12, 1962 and has been passed by Sri. K.G. Majumdar, Registrar of the Respondent University. The next order in the series is Ext. A-I dated 1st June, 1962, which was passed by the Registrar in modification of the earlier order dated April 12, 1962 and appointed the Plaintiff temporarily for six months as a clerk-cum-typist in the Examination section with the note that the appointment is purely temporary and likely to be terminated without notice. The next order in the series is Ext. A-2. It is dated the 24th October, 1962. It appears to have been passed by the officiating Registrar, and extended the term of the service of the Plaintiff up to the 31st March, 1963. This is followed by Ext. The next order in the series is Ext. A-2. It is dated the 24th October, 1962. It appears to have been passed by the officiating Registrar, and extended the term of the service of the Plaintiff up to the 31st March, 1963. This is followed by Ext. A-5 dated the 22nd February, 1964 which extended the service of the Plaintiff up to the 31st March, 1964. Ext. A-6 dated the 21st October, 1964 is a similar order extending the service of the Plaintiff up to the 31st March, 1965. There is no controversy with regard to these orders. The controversy starts with an order dated the 6th April 1965. Ext. A-7, also passed by the Registrar, Mr. K.G. Majumdar, which said that in partial modification of the office order dated the 21st October, 1964 the services of Sri. Rajendra Singh working at present in the scale of Rs. 60-4-100 EB-5-120 is extended temporarily till further orders in terms of the Executive Council's Resolution No. 2 dated 15-4-1965. Ext. 4, which is dated the 3rd December, 1965, is an office order passed by Sri. S.M. Kar, Registrar of the University. It says that as a result of screening and selection made by the Selection Committee held during the month of November, 1965, the Vice-Chancellor has been pleased to approve the following promotions and assignments of the Ministerial staff. It further says that the promotions will be reviewed after six months and necessary changes, if any, will be made on the report of their work and that these promotions will be given effect from December 1, 1965; but actual change of work will take place from 15th December, 1965. There is a list under the aforesaid order. The name of the Plaintiff is at Serial No. 26 of Category VI-60-120. He is described as "Asstt. Exam." which is followed by a ditto mark under the word "Probation". Ext. A-14, which is dated December 7, 1965 says that the postings and transfers of staff made under the order dated 3rd December, 1965, Ext. 4, may be treated as cancelled. But there will be change in promotions, reversions, and the order of seniority of each individual incumbent as shown in the aforesaid order." Ext. Ext. A-14, which is dated December 7, 1965 says that the postings and transfers of staff made under the order dated 3rd December, 1965, Ext. 4, may be treated as cancelled. But there will be change in promotions, reversions, and the order of seniority of each individual incumbent as shown in the aforesaid order." Ext. A-20 is a copy of the Resolution No. 3 of the Executive Council passed at its meeting held on the 12th May, 1963, which shows that the period of probation for Ministerial and Administrative staffs of the University was fixed at two years. The Plaintiff's case was that he was appointed permanently by the said order dated 3rd December, 1965 in terms of the Executive Council's Resolution No. 2 dated the 15th April, 1964. That Resolution may also be quoted. The Finance Committee of the University at its meeting held on 15th April, 1964 recommended, vide-Resolution No. 9, that the posts mentioned thereunder which included " the post of the Plaintiff " be permanently sanctioned and the incumbent be made permanent", if his services are satisfactory. This is proved by Ext. A-9. The Executive Council at its meeting held the same day" considered the report of the Finance Committee and resolved that the report except (ii) of Item No. 2 of the Finance Committee which made on 15-4-1964 be approved". The argument was that by the order dated 6th April, 1965 vide Ext. A-7, the Plaintiff was appointed on the permanent post of an Assistant Examination, which was created under the said Resolution of the Executive Council. The appointment made by the order dated April 6, 1965 may have been temporary; but, after the necessary screening and selection in the month of November, 1965, the Plaintiff was substantively appointed on that permanent post by the order dated 3rd December, 1965, Ext. 4. Some dispute appears to have been raised at the trial about the insertion of the word "Probation" after the Plaintiff's name, but assuming that it was there, the effect would be that the Plaintiff was appointed substantively on the post of an Assistant Examination, with effect from the 1st December, 1965 on probation. The period of probation fixed by the Resolution of the Executive Council was, as noticed above, two years. 7. The period of probation fixed by the Resolution of the Executive Council was, as noticed above, two years. 7. Normally, the services of a probationer cannot be terminated unless he is found to be unfit or his work is found to be unsatisfactory. The circumstances, in which the Plaintiff's services were terminated by the order dated the 31st October, 1967, Ext. 3, with immediate effect, with the addition that he will be paid one month's salary in lieu of notice, have not been brought out by either party. No rules or regulations would seem to have been framed for regulating the conditions of service of employees like the Plaintiff. The Respondent University is a Corporation established under an Act of Legislature. It has to act according to law. The power to appoint officers, teachers and other servants of the University and to define their duties and the conditions of their service is vested in the Executive Council. No rules or regulations governing the conditions of service of an employee of the University like the Plaintiff have been placed before me. The post of a clerk like the Plaintiff is not a statutory post. It must have been deemed to be created by the Executive Council, and, although the appointment to the post could be made only by the Executive Council, the actual appointment appears to have been made by the Registrar in pursuance of the Executive Council's Resolution No. 2 passed at its meeting dated the 15th April, 1964. That resolution accepted the recommendation of the Finance Committee that the post of the Assistant Examination, occupied by the Plaintiff, who is named in the said recommendation, be permanently sanctioned and the incumbent that is the Plaintiff be made permanent if his services were satisfactory. That process was undergone and after screening by a Selection Committee the Registrar gave effect to the said resolution of the Executive Council by appointing the Plaintiff to that post. The question is whether the power to make the appointment could be said to have been, or deemed to have been delegated to the Registrar by this round about method, for appointing the Plaintiff. It is undisputed that the Plaintiff worked as an Assistant Clerk and was treated to be an employee of the University. There was no express delegation of the power of appointment by the Executive Council to the Registrar. It is undisputed that the Plaintiff worked as an Assistant Clerk and was treated to be an employee of the University. There was no express delegation of the power of appointment by the Executive Council to the Registrar. This fact is brought out by an affidavit dated the 13th December, 1982 made by the Deputy Registrar of the Respondent-University which was filed in response to a direction made by me requiring the University to make a statement whether the power of appointment of a Ministerial staff was delegated by the Executive Council to the Registrar. The question is whether the initial appointment of the Plaintiff, that was made by the Registrar in this case, could be said to be a nullity in law so that its termination by the Registrar could not be challenged by the Plaintiff on the ground that the Registrar had no power to make the appointment or on any other ground. The argument was that the appointment being invalid, it did not require to be terminated, and, at any rate, a declaration that the Plaintiff continued in the service of the University could not be granted at all. 8. Mr. Ratnakar Bharti, learned Counsel for the Respondent University relied upon the case of University of Kashmir and Others Vs. Dr. Mohd. Yasin and Others, AIR 1974 SC 238 . In that case also, although the termination of the service of the University Professor Dr. Mohd. Yasin, was held to be invalid, his continuance in service without a proper appointment by the University Council, which alone was competent to do so, was also found to be invalid and in the result the Supreme Court, while declaring the order of termination to be void, quashed the High Court's order of re-instatement. The Supreme Court observed: The circumstance that the Respondent functioned in the University does not vest in him the legal status of a validly appointed employee with all the protection that the Act and the relevant statutes give to such a person. In this view of the fact-situation, without more, the Respondent's work on the University campus can be brought to a close. No case of statutory termination of service is called for, the basis of statutory employment being absent. In this view of the fact-situation, without more, the Respondent's work on the University campus can be brought to a close. No case of statutory termination of service is called for, the basis of statutory employment being absent. The ad hoc arrangement by which he remained to teach did not acquire legal validity merely because the Vice-Chancellor went through the irregular exercises of extending his probation, etc. We have to hold that the curtain fell on the office held by the Respondent when, at the end of 60 days after the Act, the sands of time ran out. The ground urged successfully, as it were, before the High Court, of an implied engagement cannot, in our view, be sustained. When a statute creates a body and vests it with authority and circumscribes its power by specifying limitations, the doctrine of implied engagement de hors the provisions and powers under the Act would de subversive of the statutory scheme regarding appointments of officers and cannot be countenanced by the Court. Power in this case has been vested in the University Council only and the manner of its exercise has been carefully regulated. Therefore, the appointment of the Respondent could be made only by the Council and only in the mode prescribed by the statute. If a Vice-Chancellor by administrative drift allows such employment it cannot be validated on any theory of factum valet. 9. The present case is, however, distinguishable on the facts. The case pleaded by the Respondent University in its written statement was not that the appointment of the Plaintiff was initially bad or a nullity in law and, therefore, it did not require to be terminated but that it is wrong that only the Executive Council could terminate the Plaintiff's service and that the Plaintiff's appointment was initially made by the Registrar and his service was also terminated by the Registrar's order. The further emphasis was that the Plaintiff was a temporary employee and he was never appointed on probation and that his services were rightly terminated with one month's pay in lieu of notice. The further emphasis was that the Plaintiff was a temporary employee and he was never appointed on probation and that his services were rightly terminated with one month's pay in lieu of notice. The fact remains that the resolution of the Executive Council dated 15th April, 1964 approving the report of the Finance Committee to the effect that the post held by the Plaintiff be permanently sanctioned and the incumbent of that post, namely, the Plaintiff be made permanent, if his services are satisfactory, had the effect of authorising the Registrar to undergo the exercise of finding out whether the services of the Plaintiff were satisfactory in order that he may be made permanent on the post so far held by him on a temporary basis, and the Registrar on being directed to do so, under the resolution of the Executive Council, got the Plaintiff screened by a Selection Committee and with the approval of the Vice-Chancellor assigned the Plaintiff to the post of an Assistant in the Examination Section on probation, vide Ext. 4. That has been treated to be the order of appointment issued by the Registrar, as modified by Ext. A-14, which stated that the postings and transfers of staff made under the order dated 3rd December, 1965, Ext. 4, may be treated as cancelled, but there will be no change in promotions, reversions, and the order of seniority of each individual incumbent as shown in the aforesaid order. The question really is whether the Registrar could be said to have passed the order, Ext. 4, which he purported to pass with the approval of the Vice-Chancellor, in pursuance of the authority given by the Executive Council's resolution dated 15th April, 1964. The Executive Council could un-doubtedly delegate the powers conferred on it by Clause (f) of Sub-section (1) of Section 21 of Gorakhpur University Act, 1956. The manner of delegation of its powers may not have been direct or specific but looking at the resolution dated 15th April, 1964, and the subsequent order dated April 6, 1965, Ext. A-7, that dated 12th April, 1962, Ext. A-4, and those dated December 3, 1965, Ext. 4, and dated December 7, 1965, Ext. A-14, it cannot be disputed that the Registrar was doing what he did, in pursuance of the directions issued by the Executive Council and with the approval of the Vice-Chancellor. A-7, that dated 12th April, 1962, Ext. A-4, and those dated December 3, 1965, Ext. 4, and dated December 7, 1965, Ext. A-14, it cannot be disputed that the Registrar was doing what he did, in pursuance of the directions issued by the Executive Council and with the approval of the Vice-Chancellor. To assume that the appointment of the Plaintiff was unauthorised inspite of his being mentioned by name in the resolution of the Finance Committee which was approved by the Executive Council on 15th April 1964 does not appear to be a correct view of the factual situation. At any rate since the Respondent University did not raise the point that the appointment of the Plaintiff-Appellant was un-authorised for not having been made by the Executive Council or under its authority, I do not think it proper to pursue this matter any further, nor do I attach any great importance to the fact that the order of termination was signed by the Registrar, for it appears clear to me that the Plaintiff was appointed on probation by the order dated 3rd December, 1965 Ext. 4. That being so, he must be deemed to have been appointed to the post substantively. It has been seen above that the post was made permanent under the resolution of the Executive Council dated 15th April, 1964. The period of probation was two years as determined by the Executive Council's general resolution dated 12th May, 1963, vide-Ext. A-20. That had not expired when the order dated 31st October, 1967, Ext. 3, terminating the Plaintiff's services with immediate effect was served on him, with the addition that he will be paid one month's salary in lieu of notice. Normally, the services of a probationer can be dispensed with only if he is found un-suitable for the post or if his work is un-satisfactory. It appears from the allegations made in paragraph 7 of the plaint that CCA Rules were applied by a resolution of the Executive Council, to govern the services of ministerial staff of the Respondent University. That allegation is admitted in paragraph 7 of the written statement of the Defendant-Respondent University. It appears from the allegations made in paragraph 7 of the plaint that CCA Rules were applied by a resolution of the Executive Council, to govern the services of ministerial staff of the Respondent University. That allegation is admitted in paragraph 7 of the written statement of the Defendant-Respondent University. If the CCA Rules applied, according to the Explanation appended to Rule 49 of the Civil Services (CCA) Rules, 1930, as applicable in Uttar Pradesh, or the identical Explanation to Rule 1 of the U.P. Punishment and Appeal Rules for subordinate services, the discharge of a person appointed on probation during or at the end of the period of probation in accordance with the terms of appointment and the rules governing the probationary service, does not amount to removal or dismissal, and did not, therefore, require any enquiry, or giving of an opportunity of being heard to the employee concerned. Nevertheless the Respondent University could not have terminated the services of a probationer without any rhyme or reason. It ought to have looked at the Plaintiff's performance and conduct and then made up its mind whether to confirm the Plaintiff or to extend his probation or to discharge him from service. It could not have resorted to the device of terminating his services with immediate effect from 31st October, 1967, and paying one month's salary in lieu of notice. The Plaintiff was not a temporary servant of the University and his services could not be terminated in that manner at all. 10. In the result this appeal must be allowed and the Plaintiff's suit decreed. It is declared that the termination of the Plaintiff's services by the order dated 31st October, 1967, Ext. 3, was illegal and void. The necessary consequence of this declaration is that the Plaintiff shall be deemed to have continued in service as a probationer on the post of an office Assistant in the Examination Section of the University of Gorakhpur and shall consequently be entitled to the emoluments attaching to that post. The decree for recovery of Rs. 198.33 from 1st December, 1967 to the date of the suit that was passed by the trial Court is restored. The decree for recovery of Rs. 198.33 from 1st December, 1967 to the date of the suit that was passed by the trial Court is restored. It is not necessary to pass any decree for recovery of pendentelite salary or emoluments of the Plaintiff inasmuch as payment of the same is the necessary consequence of the declaration of the invalidity of the order dated 31st October, 1967, by which the Respondent University purported to terminate his services. I may, however, observe that the view of the trial Court that the decree for recovery of pendentelite and future salary could not be passed because the Plaintiff had not paid Court-fees on that relief, does not appear to be correct, but I shall say no more about it as I have not heard arguments on that point and as observed above the passing of the decree is not necessary. I may further clarify that this judgment shall not preclude the Respondent University from discharging the Plaintiff from service in case his work or conduct was not satisfactory, or for any good reason. The parties shall bear their own respective costs throughout.