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2002 DIGILAW 167 (HP)

DR. HARISH LAKHANPAL v. STATE OF H. P.

2002-06-20

A.K.GOEL, W.A.SHISHAK

body2002
JUDGMENT Arun Kumar Goel, J.—What emerges from the pleadings of the parties in this writ petition is that Goswami Ganesh Dutt Sana tan Dharam College, Baijnath is being run by respondent No. 4. This college figures in the list of Colleges being added by the Government to the extent of 95% and aid is being provided to it. Goswami Ganesh Dutt Sanatan Dharam College at Rajpur is also being run by respondent No. 4. This college does not figure in the list of 95% Government added colleges. Though for running this college said respondent receives ad hoc grant-in-aid from the Government of Himachal Pradesh, Education Department. Prior to 6th May, 1994 without there being any rules and thereafter in accordance with the notification No. EDN-C (10) 5/80-Part, dated 6th May, 1994, whereby the Rules called "The Himachal Pradesh Non-Government Affiliated Colleges, Grant in-aid Rules, 1994" were promulgated aid was/is being provided to Non-Government Colleges. 2. In this context, it may not be out of place to notice here that both the colleges at Rajpur as well as at Baijnath are the colleges affiliated to Himachal Pradesh University. 3. In the aforesaid background the petitioner was appointed as a Lecturer on ad hoc basis in July, 1988. He continued to work as such till November, 1990. It is also admitted case of all the parties that the petitioner was duly selected by the Selection Committee constituted for the post of Lecturer in Zoology. Paragraphs 3 and 4 of the writ petition as well as of the replies filed by the respondents, which in our view are relevant, are extracted hereinbelow:-— "3. That the petitioner was appointed as a Lecturer in Zoology in respondent College on ad hoc basis in July 1988. He continued to perform his duties as Lecturer on ad hoc basis till November, 1990 when he was duly selected by the Selection Committee constituted under the provisions of Chapter XXXVIII of Himachal Pradesh University Ordinance. The Constitution of the Selection Committee as per Appendix A of Chapter XXXVIII paragraph 38. He continued to perform his duties as Lecturer on ad hoc basis till November, 1990 when he was duly selected by the Selection Committee constituted under the provisions of Chapter XXXVIII of Himachal Pradesh University Ordinance. The Constitution of the Selection Committee as per Appendix A of Chapter XXXVIII paragraph 38. 5-B (d) is being reproduced below for the post of Lecturer: "3(2) For the post of Lecturer: (i) President of the Management or his nominee-Chairman; (ii) A nominee of the Vice-Chancellor; (iii) Two experts to be nominated by the President out of a panel of expert approved by the University; (iv) The Principal of the College; (v) Head of the Department concerned of the College, if any; and (vi) A representative of the Director of Education." "4. That the petitioner was interviewed by a duly constituted Selection Committee and after having selected in November, 1990, he has been working as such, continuously. After the petitioner was so selected, the Vice-Chancellor of the Himachal Pradesh University, Shimla, also granted approval of his appointment vide office order dated April 2, 1991, a copy of which is placed on record ao Annexure P-l." Reply by Respondents No.1 and 2. "3. That the contents of this para are admitted. Be it submitted that the petitioner was appointed in GGDSD College, Rajpur which is not in the list of 90% aided colleges, hence, he cannot be transferred to aided college which is a separate college in view of the Grant-in-aid Rules and has no link with the other college." "4. That the contents of this para are not disputed." Reply filed by Respondents No. 3. "Paras 3 and 4 : The contents of these paras are admitted." Reply filed by Respondent No. 4. "3. Para-3 being matter of record calls for no reply. "4. Para 4 being matter of record calls for no reply." 4. Thus, selection of the petitioner as a Lecturer was in accordance with the provisions of law when he was appointed as such in the year 1990 and it was duly approved by the Vice-Chancellor of the University. It was not disputed at the time of hearing that appointment of petitioner in 1990 to Rajpur College was according to law then governing it. 5. It was not disputed at the time of hearing that appointment of petitioner in 1990 to Rajpur College was according to law then governing it. 5. From Annexure-P2, dated 1st May, 2002 issued by the Managing Committee of Goswami Ganesh Dutt Sanatan Dharam College it is clear that a vacancy was lying vacant at Baijnath college, as such petitioner was transferred from its Rajpur (Palampur) college to Baijnath (Kangra) College. Intimation was sent by the Secretary of the Management Society to respondent No. 2 vide Annexure P-3. For ready reference, contents of Annexure P-3 are extracted hereinbelow:— ".....The Managing Committee in its meeting held on 21.3.2002 vide his resolution No. 05 has decided to transfer the above lecturer. As per the H.P.U. Executive Council decision No. item (18) of 20.7.1990 a management can transfer a lecturer from one affiliated college to the other affiliated college with the condition that such lecturer should have been selected by a selection committee duly constituted by the university." 6. It appears that respondent No. 2 took up the case of the petitioner after his transfer from Rajpur to Baijnath, vide Annexure P-5 with Additional Secretary (Education), to the Government of Himachal Pradesh. Again this communication in our view has bearing in this case as such it is extracted here-in-below:— "2. There is no such provision in the Grant in Aid Rules, nor any reference of such type of transfers in the HPU ordinances Chapter 38.5 (D) D Part-I which pertains to Rules relating to the teachers of non-Government affiliated colleges. But the Executive Council vide its decision No. Item (18)b dated 20.7.90 has decided that a management can transfer a lecturer from one affiliated college to another affiliated college with the condition that such lecturer should have been selected by a selection committee duly constituted by the University. 3. The above lecturer has been selected by a selection committee duly constituted by the University and approved vide its letter No. 1-2/84-HPU dated 2.4.94 (letter enclosed)." 7. Again vide communication dated 5.10.2001 vide Annexure P-4, the matter was taken up with respondent No. 1 by respondent No. 2. A copy of Annexure P-5 supra was annexed. 8. In response to Annexure P-4 dated 5.10.2001, the Commissioner-cum-Secretary (Education), to the Government of Himachal Pradesh sent Annexure P-6 on 17.10.2001 to respondent No. 2. Again vide communication dated 5.10.2001 vide Annexure P-4, the matter was taken up with respondent No. 1 by respondent No. 2. A copy of Annexure P-5 supra was annexed. 8. In response to Annexure P-4 dated 5.10.2001, the Commissioner-cum-Secretary (Education), to the Government of Himachal Pradesh sent Annexure P-6 on 17.10.2001 to respondent No. 2. Its relevant paragraph is extracted hereinbelow:— Its english translation, as attached with the writ petition, is also extracted hereinbelow:— "Subject : REGARDING TRANSFER OF SHRI HARISH LAKHANPAL, LECTURER (ZOOLOGY) GGDCD COLLEGE, RAJPUR (KANGRA) TO GSDSD COLLEGE, BAIJNATH (KANGRA). Sir, With reference to your letter No. EDN-H(5)C(10)ll/82-Loose dated 5.10.2001 on the above subject, I have been directed to say that in such like several cases, decision has been taken at your own level vide letter No. EDN-H(18)LC-439/97 dated December 24, 1997, then what is the necessity of taking approval of the Government in this case. Besides this, in such like matter vide your letter No. Shiksha-H(5)C(10)45-82 dated July 20, 1996, the Principal, DAV College Kotkhai was informed that the Department/ Government neither appoint the Professors/Lecturers in non-Government Colleges, nor effect transfers. Concerned Managing Committees can take action at their own level in such cases.” 9. Therefore, with reference to the above mentioned situation, you are requested to proposal for transfer of Shri Harish Lakhanpal, Lecturer from Rajpur to GGDSD College, Baijnath, may be disposed of keeping in view the provisions of the said Ordinance of Himachal Pradesh University and as per the instructions issued from time to-time by the Executive Council at the level of the Managing Committee itself. 10. In the aforesaid background when petitioner did not receive his salary after his transfer from Rajpur to Baijnath w.e.f. 1st April, 2001, (prior to this date he was regularly paid at Palampur), and after having failed to get his grievance redressed, he has filed the present writ petition. 11. Mr. Bisht at the time of hearing of this writ petition urged that as per Grant-in-Aid Rules of 1994 as well as keeping in view the fact that the petitioner was transferred from a Government aided college to an ad hoc aided college without the approval of the Director of Education in accordance with Rule 21 of Rules 1994 supra, he is not entitled to any benefit available to a lecturer in a 95% aided college. He further pointed out that selection and appointment of the petitioner was in violation of the said rtiles at Baijnath, as such he has no right to maintain this writ petition. According to him, selection of the petitioner is contrary to the Ordinance, (extracted in paragraph 3 of the writ petition). Regarding resolution passed t|y the H.P. University, Executive Council vide Item No. (18)b on 20.7.1990, authorising the Management to transfer a lecturer from one affiliated college to the other with the condition that such lecturer should have been selected by the selection committee duly constituted, Shri Ram Murti Bisht stated that though representative of the State Government as members of the Executive Council were party to this resolution, but after coming into force the Rules of 1994, this resolution has lost its value. When specifically asked regarding selection of the petitioner as pleaded in paragraphs 3 and 4 of the writ petition and reply of all the respondents, he stated that petitioner was selected by a duly constituted selection committee in accordance with law. This selection was duly approved by the Vice Chancellor of the University as per law then applicable. 12. Once this is admitted by respondents No. 1 and 2 coupled with the resolution of the University, supra, both respondents No. 1 and 2 are precluded from saying that simply because petitioner is transferred from an ad hoc aided college to a 95% aided college will dis-entitle him for the benefits of salary etc. cannot be accepted. 13. Another reason to take this view is that it was not disputed at the time of hearing that post of lecturer in Zoology at Baijnath was lying vacant for over more than two years. Respondent No. 2 was intimated vide Annexure P-3 extracted hereinabove, regarding this factual position. Facts in this behalf have been pleaded in paragraph 7. While admitting the resolution of the Executive Council of Himachal Pradesh University dated 20.7.1990 and power of the Management to transfer a lecturer from one affiliated college to another college of which the nomenclature is the same, again it is reiterated by respondents No. 1 and 2 that vacant post in a 95% Government aided college can only be filled up after completing the normal procedure as per rules of recruitment. That was not done in the case of the petitioner as such permission to transfer was not granted. 14. That was not done in the case of the petitioner as such permission to transfer was not granted. 14. In our considered view, this plea has been raised simply to be rejected. Reason being, that Rules of 1994 supra, do not in any manner either expressly or by necessary implication over-rule and or nullify the decision of the Executive Councils referred in Annexure P-3. Besides this, it is not in any manner in conflict with the Grant-in-Aid Rules of 1994. Rather, said resolution of University ensures that a person selected by the duly constituted Committee and his selection having been approved by the Vice Chancellor, can be transferred from one affiliated college to another affiliated college as in the present case on admitted as well as established facts. 15. There appears to be a justifiable purpose for passing such a resolution by the University It is a matter of common knowledge that selection process takes lot of time from the stage of its initiation till final selection is made and appointments made. Annexure P-3 clearly shows that the post of lecturer in Zoology in Baijnath College was lying vacant for more than three years. Petitioner admittedly was selected by a duly constituted committee. Thus,, on the strength of the University resolution (supra) and as well as h^, selection having been duly approved by the Vice Chancellor under the relevant Ordinances, stand of respondents No. 1 and 2 that the petitioner <:ould not have been transferred unless Rule 21 of Grant-in-Aid Rules, 1994 supra was followed has no substance, and is hereby rejected. 16. At this stage another plea urged by Shri R.M. Bisht needs to be noted. By referring to Annexures P-7 to P-10, he submitted that when certain other teachers were transferred from Rajpur College to elsewhere, it was objected to by respondent No. 2, when the irregularity was noted during inspection. Vide Annexure P-7 supra dated 14.1.1997, it was ordered that guide-lines must be followed strictly and payment be not made out of PL.A. without clearance from the Government/Directorate. This was withdrawn by respondent No. 2 on 24.12.1997 vide Annexure P-10. In Annexure P-10 right was reserved by respondent No. 2 to take necessary action with regard to the irregular payment from Personal Ledger Account (PLA) Grant-in-Aid from Government. This was withdrawn by respondent No. 2 on 24.12.1997 vide Annexure P-10. In Annexure P-10 right was reserved by respondent No. 2 to take necessary action with regard to the irregular payment from Personal Ledger Account (PLA) Grant-in-Aid from Government. With a view to satisfy ourselves regarding action if any, taken by the respondents pursuant to Annexure P-10, record was requisitioned. The same was made available. We find that the matter was under correspondence and in the year 2001, objections were raised which were being met with. 17. In the circumstances of this case, particularly when appointment of the petitioner was made in accordance with Rules applicable at the relevant point of time, coupled with the resolution of the University it was held which is neither in conflict with the Grant-in-Aid Rules, 1994 supra, nor is in dereliction of those, no fault can be found with the transfer of the petitioner from Rajpur College which admittedly is an affiliated college to another affiliated college i.e. at Baijnath. Here it may be relevant to observe that a post was lying vacant at Baijnath. It is not the case of respondents No. 1 and 2 that for this vacant post, Government was not liable to provide Grant-in-Aid to the extent of 95%. 18. On this ground also on what legal basis these respondents are now pleading that selection of the petitioner is not in accordance with rules is made out. Grant-in-Aid is to go to an institution which is on the list against a particular post where duly selected person as per rules, is to be appointed, of course in accordance with law. This is exactly what has happened in the transfer from Rajpur to Baijnath. 19. In view of the aforesaid discussion, this writ petition has been disposed of finally, treated it as having been admitted and having been heard finally and on the joint request of the learned counsel for the parties, record produced by Shri Ram Murti Bisht has been returned to him in the Court. 20. No other point is urged. 21. 19. In view of the aforesaid discussion, this writ petition has been disposed of finally, treated it as having been admitted and having been heard finally and on the joint request of the learned counsel for the parties, record produced by Shri Ram Murti Bisht has been returned to him in the Court. 20. No other point is urged. 21. In view of the aforesaid, this writ petition is allowed and as a consequence of it, Annexure P-12/A is hereby quashed and set aside and respondents No. 1 and 2 are directed to now deal with the case of release of 95% Grant-in-Aid as per Rules, 1994, referred to in this judgment for the post of Lecturer in Zoology at Goswami Ganesh Dutt Sanatan Dharam College, Baijnath. Respondents are further directed to ensure that the earned un-paid salary, if any is released to him forthwith and he is further regularly paid the same alongwith other teachers of College at Baijnath. 22. Costs on parties. Writ Petition allowed.