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Allahabad High Court · body

2003 DIGILAW 2809 (ALL)

G. K. RAI v. STATE OF U. P.

2003-12-01

M.KATJU, UMESHWAR PANDEY

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M. KATJU, UMESHWAR PANDEY, JJ. ( 1 ) HEARD Sri R, N. Singh, learned counsel for the petitioners, learned standing counsel for the state Government, Sri P. S. Baghel for Allahabad University and Sri Ashok Khare for the newly impleaded respondents. ( 2 ) THIS writ petition has been filed against the impugned order dated 14. 11. 2003 Annexure-6 to the writ petition. By that order the Secretary, Higher Education, U. P. has directed that the recommendations of the Selection Committee of Allahabad University with regard to the Career advancement Scheme for promotion from the post of Reader to Professor shall not be placed before the Executive Council of the University. ( 3 ) THE petitioners have alleged in para 4 of the petition that they are Readers in various departments in the Allahabad University and are fully eligible for being considered for promotion to the post of Professor under the Career Advancement Scheme. It is alleged in para 5 of the petition that 182 cadre posts of Professors, Readers, and Lecturers which were lying vacant in the Allahabad University were advertised for being filled up by way of direct recruitment. Apart from the aforesaid, applications were also invited for grant of promotion under the Career Advancement Scheme/personal Promotion Scheme from eligible persons. In pursuance of that advertisement and the circulars, several candidates applied including the petitioners for being considered for grant of promotion to the post of Professor under the Career advancement Scheme/personal Promotion Scheme. ( 4 ) IT is alleged in para 7 of the petition that the State Government on 10. 9. 2003 had stayed all selections and appointments in the University vide Annexure-1 to the writ petition. This was because the State Government had stayed all selections and appointments in the University on the posts of Lecturers, Readers, and Professors on a complaint of one Dr. Pankaj Kumar, lecturer in Political Science in the University. It is alleged in para 9 of the petition that this order dated 10. 9,2003 was wholly without jurisdiction and if Dr. Pankaj Kumar had any grievance, he should have preferred a representation under Section 68 of the U. P. State Universities Act before the chancellor. ( 5 ) THE petitioners and others similarly situate then made representations before the State government that the order dated 10. 9. 9,2003 was wholly without jurisdiction and if Dr. Pankaj Kumar had any grievance, he should have preferred a representation under Section 68 of the U. P. State Universities Act before the chancellor. ( 5 ) THE petitioners and others similarly situate then made representations before the State government that the order dated 10. 9. 2003 be modified/relaxed to the extent that the case for promotion under the Career Advancement Scheme/personal Promotion Scheme may be considered. The State Government acting on those representations, Issued an order dated 26. 9. 2003 whereby the earlier Government order dated 10. 9. 2003 was relaxed to the extent that the cases for promotion under the Career Advancement Scheme/personal Promotion Scheme could be considered. A true copy of the order dated 26. 9. 2003 is Annexure-2. Apart from the order dated 26. 9. 2003 another order dated 23. 10. 2003 was issued by the State Government whereby it was provided that cases for promotion to the posts of Reader and Professor under the career Advancement Scheme/ Personal Promotion Scheme could be considered simultaneously keeping in view the fact that a long delay had already occurred. True copy of the order dated 23. 10. 2003 is Annexure-3. ( 6 ) IT is alleged in para 14 of the writ petition that pursuant to the aforesaid order, selection committees met for considering the cases of teachers for promotion under the Career advancement Scheme/ Personal Promotion Scheme to the post of Readers and Professors. It is alleged that the petitioners appeared before the selection committees and recommendations have been made by the selection committees to the Executive Council. The Executive Council was to meet on 22. 11. 2003 for considering the recommendation of the selection committees and we are informed that now the Executive Council is to meet on 11. 12,2003 for this purpose. ( 7 ) IN para 16 of the writ petition, it is alleged that some disgruntled persons who did not want that the aforesaid selections/consideration should take place again approached the State government by making some representation alleging financial irregularities in the past for granting promotion to the post of Readers and Professors. They were able to persuade the State government to issue an order dated 14. 11. They were able to persuade the State government to issue an order dated 14. 11. 2003 (vide Annexure-5 to the petition) purporting to be under Section 8 of the U. P. State Universities Act, 1973 ordering an enquiry into the said allegations of financial irregularities. By that order, Sri A. Q. Farooqui, Secretary, Higher education, U. P. has been appointed as the enquiry officer, vide Annexure-5. ( 8 ) IT is alleged in para 17 of the petition that Sri A. Q. Farooqui, who was appointed as Enquiry officer proceeded to pass the Impugned order dated 14. 11. 2003 restraining the University from placing the recommendations of the selection committee before the Executive Council vide annexure-6. It is this order, which has been challenged in this petition. ( 9 ) WE have considered the affidavit filed along with the impleadment application of Dr. Hari shanker Upadhyay and other, Dr. O. P. Srivastava and others and also the counter-affidavit on behalf of Dr. Upadhyaya. We have also considered the counter-affidavit of the University. No counter-affidavit has been filed by the State Government although it was granted time by any order dated 20. 11. 2003. ( 10 ) IN our opinion, a purely legal question is involved in this case as to whether the impugned order dated 14. 11. 2003, Annexure-6 to the petition was within jurisdiction or not. ( 11 ) IN our opinion, the impugned order was wholly without jurisdiction. It may be mentioned that the recommendation of the selection committee is yet to be considered by the Executive council. For all we know the Executive Council may reject those recommendations, or it may partly accept and partially reject them, or it may totally accept the recommendations. What the executive Council will do we do not know at this stage. If the Executive Council accepts the recommendations and gives appointments to the petitioners then it is always open to the persons aggrieved to approach the Chancellor under Section 68 of the U. P. State Universities Act. The newly impleaded persons appear only to be interested in obstructing the selection and short-circuiting the statutory remedies which are available to them. These newly impleaded respondents, and the other persons who have filed impleadment applications, do not appear to have any locus standi at all at this stage. The newly impleaded persons appear only to be interested in obstructing the selection and short-circuiting the statutory remedies which are available to them. These newly impleaded respondents, and the other persons who have filed impleadment applications, do not appear to have any locus standi at all at this stage. ( 12 ) IT may be mentioned that we are in this case not concerned with regular promotions of readers and Professors but with personal promotion/career advancement. For promotion under personal promotion scheme/career advancement scheme there is no competition between the petitioners and the newly impleaded respondents and other teachers who have sought impleadment in this petition. This is because there are no fixed number of posts which are to be filled in through personal promotion scheme or career advancement scheme. All teachers, who are found, eligible and fit by the selection committee can be promoted under the personal promotion scheme/career advancement scheme, and there is no competition with anybody (unlike regular selection ). Hence, in our opinion, the newly impleaded respondents and others, who have filed impleadment applications in this case have no locus standi at all to challenge the recommendations of the selection committee. If such persons wanted promotions, they should have filed separate writ petitions, but they cannot seek impleadment in this petition. ( 13 ) WE are also of the opinion that the impugned order dated 14. 11. 2003, Annexure-6 to the petition was wholly without jurisdiction. The order dated 14. 11. 2003 (copy of which Annexure-5 to the petition) purports to have been passed under Section 8 of the U. P. State Universities Act, and in our opinion, that order is valid because under Section 8 (1) of the U. P. State Universities act, the State Government can certainly order an inspection and enquiry regarding matters connected with the administration and finances of the University. Under Sub-section (4) of section 8 of the Act, after this enquiry, the State Government can communicate its views and advice to the University. Under Sub-section (6) of Section 8 if the University authorities did not within a reasonable time take action to the satisfaction of the State Government, the Government may, after considering the explanation of the University, issue directions to the University authorities which they are bound to comply. Under Sub-section (6) of Section 8 if the University authorities did not within a reasonable time take action to the satisfaction of the State Government, the Government may, after considering the explanation of the University, issue directions to the University authorities which they are bound to comply. ( 14 ) THUS, the directions under Section 8 (6) of the Act can only be issued after the State government has completed its enquiry and communicated its view and advice to the University but the University has not taken action in this Connection to the satisfaction of the State government. Hence directions cannot be issued by the State Government straightaway to the university authorities without even completion of the enquiry and without giving its advice and opinion to the University. Hence, in our opinion, the order dated 14. 11. 2003, copy of which is annexure-6 to the petition, by which a direction has been given by Shri Farooqui to the university authorities was wholly without jurisdiction. ( 15 ) SHRI Ashok Khare, learned counsel for the newly impleaded respondents has then relied on section 66a of the Act, which was inserted by U. P. Ordinance No. 21 of 2003. Section 66a states : "the State Government may issue such directions from time to time to a university on policy matters not inconsistent with the provision of this Act as it may deem necessary. Such direction shall be complied with by the University. " ( 16 ) IN our opinion, the order dated 14. 11. 2003 Annexure-6 to the petition cannot be said to be related to any policy matter, and hence, it does not come within the ambit of Section 66a of the act. Moreover, Section 66a itself states that the State Government cannot issue directions inconsistent with the provisions of Sections 31 and 31a of U. P. State Universities Act. Under section 31. the procedure for selection of regular teacher in the University has been prescribed, and Section 31a of the Act prescribes the procedure for personal promotion. No directions can, therefore, be given, inconsistent with the procedure prescribed in the above provisions. ( 17 ) SHRI Ashok Khare, learned counsel for the newly impleaded respondents has then submitted that Section 31a only deals with personal promotion and not with career advancement scheme. In our opinion, in substance there is no difference between personal promotion scheme and career advancement scheme. ( 17 ) SHRI Ashok Khare, learned counsel for the newly impleaded respondents has then submitted that Section 31a only deals with personal promotion and not with career advancement scheme. In our opinion, in substance there is no difference between personal promotion scheme and career advancement scheme. It may be mentioned that in many universities, there was stagnation amongst the teachers as there were very few higher posts, and hence, teachers often remained as lecturers or Readers for long periods. Hence, personal promotion schemes were created which gave promotion not on any post but personally, only to overcome the stagnation. Hence, persons were promoted as Professor or Reader on personal promotion by giving them the designation and salary of Professor or Reader as the case may be, although in fact such post did not exist. Hence, when such teachers who were promoted on personal promotion retired no vacancy arose. ( 18 ) AS regards career advancement scheme, in our opinion, it is substantially the same as personal promotion scheme because here also promotions are not against any post, and when the promotee retires no vacancy arises. Thus, the difference between the two is really only of nomenclature and not of substance. Hence, in our opinion, career advancement scheme also comes within the ambit of Section 31a of the Act. ( 19 ) IN Neetima Misra v. Harinder Kaur Paintal and Ors. , 1990 (1) AWC 641 (SC) ; (1990) 2 scc 746 , the Supreme Court observed (vide para 10) that there are three authorities which are involved in the selection of university teachers ; (i) Selection Committee, (ii) Executive Council and (iii) Chancellor, ( 20 ) IT follows that the State Government is not in the picture at all in the matter of making selection and appointment of university teachers. In para 26 of the same judgment, it is stated that Section 31 of the Act confers no right to make representation to the Executive Council or to the Chancellor against the recommendation of the selection committee. Anyone who is aggrieved against the decision of the Executive Council can always approach the Chancellor under Section 68 of the Act. ( 21 ) FOR the facts and reasons given above, the petition is allowed. The Impugned order dated 14. 11. 2003 Annexure-6 to the writ petition is quashed. ( 22 ) NO order as to costs. .