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2007 DIGILAW 403 (GAU)

S. N. Rai v. North Eastern Hill University

2007-06-07

TINLIANTHANG VAIPHEI

body2007
JUDGMENT Tinlianthang Vaiphei, J. 1. This writ petition filed by the petitioner is directed against the refusal of the respondent-University to allow him to attend and participate in the meetings of the Academic Council of the University or to issue him the notices, agenda papers, etc. of the said meetings held from time to time, even though he is a member of the Council. 2. Heard Mr. V.K. Jindal, the learned senior Counsel assisted by Mr. S. Jindal, the learned Counsel for the petitioner and Mr. Sen, the learned Counsel for the respondent University. 3. The material facts of the case as pleaded by the petitioner are that, he is M.Sc., PhD in Physics from Banaras Hindu University and that he used to work as a temporary lecturer in the Banaras Hindu University and did his Post Doctoral in Germany, USA and UK. He joined the services of the University in the Department of Chemistry and on 18.8.1993, he was appointed as Director, Computer Centre of NEHU, Shillong and since then, he has been leading the aforesaid Centre in his capacity as the Director. The petitioner was subsequently appointed as Head of Computer Centre with effect from 27.10.1990 and by virtue of the post held by him as Head of Computer Centre of the University, he was a Member of the Academic Council of the respondent-University. Even after he was appointed as Director of the Computer Centre, he continued to be a member of the Academic Council. According to the petitioner, the respondent No. 2, who is the Chairman of the Academic Council, in the 63rd Meeting of the Council held on 8th and 9th June 2000, introduced him as a new member of the Academic Council and he was also appointed by the respondent No. 2 as the Chairman of Board of Under Graduate Studies in Computer Science of the University in his capacity as the member of the Academic Council. It is also asserted by the petitioner that the Controller of Examinations of the respondent-University, vide his letter dated 21.11.2005, invited him in his capacity as the Chairman of the BUGS, Computer Science, in the Moderation Board Meeting for the Under Graduate Examination held on 25.11.2005 and that the fact of his invitation as Chairman, BUGS, Computer Science is under Ordinance OA-9, and is reflective of the fact that he is still a member of the Academic Council since only members of the Academic Council can be appointed as Chairman of BUGS. It is also pleaded by the petitioner that under the provisions of the NEHU Act, 1973 and the Statutes, the respondent-University is required to prepare an annual report which is passed by the highest body of the University i.e. "The Court" which is sent to the Visitor, who is the President of India, every year for his appraisal and approval. The said report contains a list of members of the Academic Council which also included the Head of Computer Centre, NEHU as member of the Academic Council. It is also asserted by the petitioner that in the 30th Annual Report of 2003-2004 of the University published and approved by the Court of the University and sent to the Visitor, the Head of Computer Centre, NEHU, was included as member of the Academic Council whereafter the same is placed before the Houses of Parliament for information/discussion and approval. 4. It is also the case of the petitioner that there were some mis-management of the provident and pension funds and other irregularities in the mode of placement of teachers, constitution of the purchase committee, etc. in the University and when he discussed these irregularities and mismanagement with the respondent No. 3, who happened to be the Chief Vigilance Officer of the University, in his office on 23.2.2004 with a request to enquire and examine the same, the respondent No. 3 did nothing, whereupon he sent a complaint to the Chief Vigilance Commissioner, New Delhi on 15.3.2004. When the petitioner did not receive the acknowledgment card from the Commissioner, he sent another copy of the complaint by his letter dated 25.3.2004 and again by Speed Post on 8.4.2004. When the petitioner did not receive the acknowledgment card from the Commissioner, he sent another copy of the complaint by his letter dated 25.3.2004 and again by Speed Post on 8.4.2004. According to the petitioner, the complaint was ultimately entertained by the Chief Vigilance Commissioner, who forwarded the same to the respondent-University for comment whereupon the respondent No. 3 started having personal grudge against him. When the 73rd meeting of the Academic Council was being held on 15th and 16th June 2005, though the agenda note was prepared on the basis of the letter of the petitioner in his capacity as Chairman of BUGS, he was not invited for the meeting till 14.6.2005, but on 14.6.2005 he received the agenda papers for the said meeting as "special invitee" instead of as a member of the Academic Council by deliberately omitting the word "member" thereby conveying the idea that he was no longer a member of the Academic Council and was invited only as a special invitee. This prompted the petitioner to immediately lodge a protest and at the same time highlighted therein the facts and circumstances in which he was made member of the Academic Council since 8.6.2000. It is the case of the petitioner that the respondent No. 3, being biased against him for obvious reason, was responsible for de-recognising him as member of the Academic Council. 5. It is also pleaded by the petitioner that the protest letter made by him did not evoke any positive response from the respondent-University even though he is still a member of the Academic Council and is entitled to receive the meeting notices, agenda papers and minutes of the meeting of the Academic Council held from time to time. It is contended by the petitioner that the action of the respondents, more particularly, the malafide and capricious actions of the respondent No. 3, in not sending such notices/agenda papers, etc. for the meeting of the Academic Council on 28.11.2005 and subsequent thereto are arbitrary, illegal and unconstitutional and infringe his legal rights under NEHU Act, Statute and Ordinance. It is also contended by the petitioner that as he is the Head/Director of the Computer Centre of the University, he is the Ex-Officio member of the Academic Council of the respondent-University. for the meeting of the Academic Council on 28.11.2005 and subsequent thereto are arbitrary, illegal and unconstitutional and infringe his legal rights under NEHU Act, Statute and Ordinance. It is also contended by the petitioner that as he is the Head/Director of the Computer Centre of the University, he is the Ex-Officio member of the Academic Council of the respondent-University. It is also asserted by the petitioner that the contention of the respondent-University at the Motion hearing on 25.11.2005 before this Court that Computer Centre is not a Centre of Studies and that the Head of the Computer Centre cannot be a member of the Academic Council is absolutely untenable in law. It is submitted by the petitioner that the Computer Centre, NEHU, Shillong has been established by the University Grants Commission, New Delhi under its Sixth Plan wherein it was envisaged that one Professor/Reader will be appointed to head the Centre and that the Computer Centre would be called upon to run the various academic programmes organized by the Department of Mathematics, and that, as a matter of fact, the Computer Centre should be made as a laboratory for the Mathematics Department in running its computer oriented courses. 6. The petitioner also points out that the Computer Centre, NEHU is actively associated with the various academic programmes of research and examination works and that one of the staff members of the Computer Centre is a Reader and Co-Supervisor of a P.H.D. student. It is also pointed out by the petitioner that the Computer Centre is conducting various courses including BCA and MCA for the students of the India Gandhi National Open University, a fact which was reported to the Ministry of Human Resources Development, New Delhi by NEHU is its letter dated 10.2.2003. According to the petitioner, all these facts are sufficient to establish that the Computer Centre, NEHU is a Centre of Studies. The petitioner questions that if the Computer Centre, NEHU is not a Centre of Studies, how he could be appointed as a member of the Academic Council? It is also the case of the petitioner that vide the Notification dated 22.4.2004, he was appointed by the Vice Chancellor as the Chairman of the BUGS in Computer, which was duly ratified by the Academic Council in the meeting held on 17th and 18th June 2004 vide the letter dated 31.5.2004 of the Deputy Registrar Conference NEHU. It is also the case of the petitioner that vide the Notification dated 22.4.2004, he was appointed by the Vice Chancellor as the Chairman of the BUGS in Computer, which was duly ratified by the Academic Council in the meeting held on 17th and 18th June 2004 vide the letter dated 31.5.2004 of the Deputy Registrar Conference NEHU. The Vice Chancellor arbitrarily and illegally under the pretext of reconstituting the BUGS in Computer Science removed him from the Chairmanship of the BUGS in Computer Science while other members continued to remain so. According to the petitioner, such action of the Vice Chancellor is illegal, arbitrary, malafide and are violative of the principles of natural justice and, as such, the Notification dated 1.12.2005 is liable to be set aside. 7. The writ petition is opposed by the respondent-University by filing their affidavit-in-opposition. The case of the respondent-University is that the petitioner is not a teacher in the University, but is holding the post of Director, Computer Centre of the University, which is a non-teaching post and that the petitioner was appointed as a Director, Computer Centre in a non-teaching post after making regular selection pursuant to the advertisement dated 10.4.92. He was subsequently confirmed to the post. It is pointed out by the answering respondents that the petitioner was confirmed to the said post by the order dated 29.10.1996 after receipt of his annual confidential reports and that in the case of teaching staff of the University, no annual confidential report has been maintained at all and the petitioner, being a holder of a non-teaching post, is required to submit his annual confidential report. The respondent-University contends that as per composition and constitution of the Academic Council in terms of Statute 14, he does not fall in any of the categories enumerated therein to be considered or eligible to be a member of the Academic Council. The answering respondent questioned the motive of the petitioner in making the respondent No. 3 as party in his personal capacity when no evidence of malafide is discernible in his action and the same is therefore unsustainable in law. The answering respondents point out that Departments and Centres for Studies are to be established by Statutes and Ordinances in terms of Sections 24 and 26 of the NEHU Act and that Ordinance OA-2 and Ordinance OA-3 Set up the existing Departments and Centres for Studies. The answering respondents point out that Departments and Centres for Studies are to be established by Statutes and Ordinances in terms of Sections 24 and 26 of the NEHU Act and that Ordinance OA-2 and Ordinance OA-3 Set up the existing Departments and Centres for Studies. There is no Ordinance setting up the Computer Centre as a Centre for Studies. As per statute 14(1)(V), Heads of the Department and Centre for Studies are, amongst others, the members of the Academic Council, and that Computer Centre is neither a Department nor a Centre for Studies. Therefore, the petitioner, who is the Director of the Computer Centre is not eligible to be a member of the Academic Council. 8. It is also pointed out by the answering respondents that as per Section 26K of the NEHU Act and Statutes 18, each Department is to have two Boards of Studies, one for post graduate studies and another for under graduate studies while Clause IV of Statutes 18 provides that the constitution and function of a Board of Under Graduate Studies shall be prescribed by the Ordinance, while Ordinance OA-9 lays down the constitution of the said Board as well as its functions. Sub-Clause(i) of the proviso to Clause (ii) of the Ordinance OA 9 provides that three persons not below the rank of Readers are to be appointed by the Academic Council, one of which shall be the Chairman to be appointed by the Vice Chancellor provided that he is a member of the Academic Council. Thus, according to the answering respondents, when the petitioner is not holding a teaching post but is holding a non-teaching post, the question of his induction into the Board does not arise. It is also pointed out by the answering respondents that the petitioner was appointed as the Head of the Computer Centre vide the Notification dated 26.10.90 for a period of three (3) years and thereafter, was appointed in a non-teaching post of Director, Computer Centre pursuant to the advertisement and, as such, he cannot be a member of the Academic Council in terms of the relevant Statutes and Ordinances. 9. 9. According to the respondents, the fact that the petitioner was inadvertently allowed to attend some of the meetings of the Academic Council as the member thereof, cannot legally confer upon him the right to continue or remain as such when he has no right to be a member of the Council, and that when this mistake was detected, necessary rectification, even though belatedly, had to be made by excluding him from the subsequent meetings of the Academic Council. The answering respondents also highlighted in their affidavit-in-opposition the ramifications and the disastrous consequences resulting from his attendance at such meetings where important resolutions are adopted by the members present. In so far as the malafide alleged against the respondent No. 3 is concerned, the answering respondents vehemently deny such allegations and state that the complaint lodged by the petitioner was promptly forwarded to the Vigilance Officer on 22.6.2004 for necessary action, but the petitioner, without waiting for the outcome of the inquiry, forwarded a similar complaint to the Chief Vigilance Commissioner, New Delhi. These are the sum and substance of the case of the respondent-University. Contending that there is no merit in the writ petition, the answering respondents pray for dismissal of the writ petition with costs. 10. The petitioner, in reply to the affidavit-in-opposition of the respondents filed his rejoinder affidavit in which he contends that if the post of Librarian, which falls under the category of non-teaching post, can be a member of the Academic Council as provided in Statutes 14, there is no reason why he should be disqualified from becoming a member of the Academic Council when he is admittedly the Head of the Computer Centre. It is pointed out by the petitioner that while Ordinance OA-3 deals with the setting up of Centre for Studies by the University on its own, the Computer Centre has been established on the recommendation of the University Grants Commission, New Delhi and as such, the Computer Centre so established is deemed to be a Centre for Studies. According to the petitioner, the Computer Centre created by the University Grants Commission, New Delhi is not assigned to any particular School of Studies but remains as a Centre for the entire University for pursuing research, training and studies. According to the petitioner, the Computer Centre created by the University Grants Commission, New Delhi is not assigned to any particular School of Studies but remains as a Centre for the entire University for pursuing research, training and studies. According to the petitioner, the provisions of Ordinance OA-3 are not exhaustive of the power to establish a Centre for Studies and that the establishment of such a Centre by the University Grants Commission is also equally a Centre for Studies within the meaning of Section14(1) of the NEHU Act. 11. Statute 14 (1) of the North Eastern Hill University Statutes ("the Statutes" of short) provides for constitution of the Academic Council of the University and says that the Academic Council shall consist of the following members, namely, (i) Vice Chancellor, (ii) Pro-Vice-Chancellor, if any (iii) Deans of Schools, (iv) Dean of Students' Welfare, (v) Heads of Departments and Center of Studies, (vi) Librarian, (vii) Principals of Colleges maintained by the University, (viii) All Professors, other than the Heads of Department and Centres, to be nominated by the Vice Chancellor. There are also other members of the Academic Council, with which we are not concerned in this case. It is not the case of the petitioner that he has been nominated as the member of the Academic Council by the Vice-Chancellor. It is, however, the case of the petitioner that since he is the Director and Head of Computer Studies, he is the Ex-officio member of the Academic Council. The question which then falls for consideration is whether the Centre for Computer of the University is the Centre for Studies within the meaning of Clause 14 (1) (v) of the Statutes, Statute 5 empowers the University to, among others, establish such campuses, centres, specialized laboratories or other units for research and instruction as are, in the opinion of the University, necessary for furtherance of its objects. Section 26(l)(k) empowers the University to make Ordinances with respect to the establishment of Centres for Studies, Board of Studies, Special Centres, Specialised Laboratories and other Committees. Statute 17 of the Statutes deals with Schools of Studies and Departments. Statute 17 (5) is relevant for our purpose which says that no Department shall be established or abolished except by the said Statutes. Statute 17 of the Statutes deals with Schools of Studies and Departments. Statute 17 (5) is relevant for our purpose which says that no Department shall be established or abolished except by the said Statutes. The proviso thereto further says that the Executive Council may, on the recommendation of the Academic Council, establish Centers of Studies to which may be assigned such teachers of the University as the Executive Council may consider necessary. In exercise of the powers conferred by Section 20(i)(k) of the NEHU Act, 1973, the University issued the Ordinance called "the North Eastern Hill University Centres" Establishment. Structure and Management Ordinance 1986. Clause 2 of the Ordinance enables the University to establishment Centre (s) in any of its schools for purposes designated therein in any of its Campuses of anywhere else within its territorial jurisdiction. 12. Then, OA-3 is the Ordinance on the establishment of Centres of Studies, namely, (i) Centre for Supporting Learning Systems, (ii) Centre for Rural Development, (iii) Centre for Cultural and Creative Studies, (iv) Centre for Environmental Studies and (v) Centre for Applied Statistics. It is obvious that Centre for Computer Studies or Computer Centre of the University, of which the petitioner is the Head/Director, is not included in the said Ordinance. In my opinion, the question whether the Director of Computer Centre is or is not a teaching post is not really material. For instance, the post of Librarian is made the Ex-officio member of the Academic Council by Statute 14(1) of the Statutes, even though this is admittedly a non-teaching post. As for the Centre for Supporting Learning Systems, Centre for Rural Development, Centre for Cultural and Creative Studies, (iv) Centre for Environmental Studies and Centre for Applied Statistics, these Centres have been established by an Ordinance in accordance with law, and the Heads of these Centres so duly established by law become the Ex-officio members of the Academic Council. Of course, a person holding a teaching post, namely, a Professor can also become member of the Academic Council If is he nominated by the Vice-Chancellor in terms of Statute 14(l)(viii) of the Statute. The petitioner is unable to produce any evidence to show that the Computer Centre has been established by an Ordinance to be a Centre for Studies. Of course, a person holding a teaching post, namely, a Professor can also become member of the Academic Council If is he nominated by the Vice-Chancellor in terms of Statute 14(l)(viii) of the Statute. The petitioner is unable to produce any evidence to show that the Computer Centre has been established by an Ordinance to be a Centre for Studies. Consequently, the claim of the petitioner that he has been, and continues to be, a member of the Academic Council does not hold water. It is his further case that as he is appointed by the Vice-Chancellor as the Chairman of the Board of Under-Graduate Studies (BUGS) in Computer Science of the University, he, ipso facto, continues to be a member of the Academic Council, Mr. V.K. Jindal, the learned senior Counsel for the petitioner, drawing my attention to the letter dated 21.11.2005 of the Controller of Examination of NEHU which was an invitation to the attend the moderation Board meeting for the Under-Graduate Examination held on 25.11.2005 in his capacity as the Chairman of BUGS, Computer Science, contends that this invitation itself is reflective of the fact that he is still a member of the Academic Council. Though this submission is attractive in the first blush, it does not really stand up to scrutiny when it is considered in the context of Ordinance OA-9, upon which the learned senior Counsel himself heavily relies. The submission of the learned senior Counsel completely overlooks the proviso (i) to Clause 2 of OA-9, which says that where there is no teaching at the University Department for which the Board of Under-Graduate Studies is to be constituted, the constitution will be done by three persons not below the rank of Reader to be appointed by the Academic Council, one of whom shall be appointed as Chairman by the Vice-Chancellor provided that he is a member of the Academic Council. The aforesaid proviso amply makes it clear that only a member of the Academic Council can be appointed by the Vice-Chancellor as the Chairman of such Board of Graduate Studies. Moreover, the very fact that the petitioner seeks to draw support from this proviso goes to show that there is no teaching of Computer Science as normal under-graduate course or post graduate course in the Centre of Computer. Moreover, the very fact that the petitioner seeks to draw support from this proviso goes to show that there is no teaching of Computer Science as normal under-graduate course or post graduate course in the Centre of Computer. Anyway, on my finding that the petitioner cannot be, and is not, a member of the Academic Council, his appointment as Chairman of Bugs in Computer Science by the Vice-Chancellor is ultra vires and cannot be sustained by law. 13. Confronted with the above situation, Mr. V.K. Jindal, the learned senior Counsel for the petitioner, alternatively, submits that the Act, Statutes and Ordinance are not exhaustive of the power to establish Centre of Studies and that the Computer Centre in question is established by the University Grants Commission and, as such, the Centre so established is deemed to have been a Centre of Studies within the meaning of Statute 14 of the Statutes. I am not impressed by his submission. Even on my specific query at the hearing, the learned senior Counsel miserably failed to cite any provision in the Act, Statutes or Ordinances, which can possibly confer upon the UGC the power to independently establish a Centre of Studies. Therefore, this submission is noted only to be rejected. It is next contended by him that the fact that the Vice-Chancellor in the 63rd Meeting of the Council held on 18th and 19th June, 2000 introduced the petitioner as the new member of the Academic Council and the further fact that the Annual Report submitted to the Visitor of the University i.e. the President of India every year, the last being of the 32nd Annual Report, 2005-2006, reflected his name as the member of the Academic Council, would go to show that the petitioner has been, is, and continues, to be member of the Academic Council. In my judgment, this contention has no force. Once it is found that the petitioner has no right to be appointed as member of the Academic Council, the unauthorized act of the University in treating him as member of the Academic Council in the past, no matter for how long, cannot legalise his past illegal appointment, and to do so would amount to perpetuation of illegality. There can be no estoppel against statutes. There can be no estoppel against statutes. The University-respondents are not legally precluded from de-recognising the petitioner as member of the Academic Council as and when their past mistakes are discovered as is done in this case. In the view that I have taken, there is no infirmity in the impugned actions of the University-respondents. For the reasons stated in the foregoing, this writ petition is devoid of merit and is, accordingly, dismissed, but by directing the parties to bear their own costs. The interim order stands vacated. Petition dismissed