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2011 DIGILAW 2177 (ALL)

Rekha Yadav v. State of U. P. and Others

2011-09-16

PRADEEP KANT, RITU RAJ AWASTHI

body2011
Hon'ble Ritu Raj Awasthi,J.:— Heard Sri Sandeep Dixit, learned counsel for the petitioner, Sri Tanweer Ahmad Sidiqui holding brief of Sri S.P. Shukla for the University and Sri Ashok Shukla, learned counsel for the State. This writ petition by Smt. Rekha Yadav challenges the orders passed by the State Government dated 18th of August, 2010 and also the resolution of the Executive Council dated 29th of September, 2010 by means of which the recommendation of the selection committee for grant of Senior Scale to the petitioner has been withheld in view of the order dated 18th of August, 2010 passed by the State Government. The petitioner was initially appointed on the post of Clay Figure Modular in the College of Arts and Crafts, Faculty of Fine Arts on 5th of July, 1993 in the pay-scale of Rs. 1400-2300/-, she was confirmed on the said post on 24th of December, 1994. Later on she was transferred to the post of Instructor from the post of Clay Figure Modular under the orders of the Vice-chancellor on a request being made by her. In fact, on 31st of May, 1995, her aforesaid transfer was accepted by the Vice-chancellor in pursuance of which an office memorandum was issued from the office of the Principal appointing/transferring her on the post of Instructor temporarily in the pay-scale of Rs. 1600-2300/-. Again on 15th of December, 1998, she was given the designation of Lecturer in pursuance of the Government Order dated 17th of October, 1998 and the resolution of the Executive Council dated 27th of October, 1998. The petitioner retired from the post of Lecturer on attaining the age of superannuation on 30th of June, 2010. However, her claim for award of senior pay-scale in the Lecturer's Grade being recommended by the selection committee on 2nd of June, 2010 was pending consideration. Before the said senior pay-scale could be awarded to the petitioner actually, the State Government got some enquiry conducted regarding the appointments made in the College of Arts and Crafts on some complaint being made and in this enquiry several appointments/promotions were scrutinized in which the name of the petitioner also finds mention. In fact, an audit objection was raised for the financial year 2006-07 and 2007-08 about the alleged illegal promotion having been given to the petitioner on the post of Lecturer for which she was paid an amount of Rs.4,97,255/-. In fact, an audit objection was raised for the financial year 2006-07 and 2007-08 about the alleged illegal promotion having been given to the petitioner on the post of Lecturer for which she was paid an amount of Rs.4,97,255/-. The audit report further says that it could not be verified that the Principal was the appointing authority for the post of Clay Figure Modular and on that basis also observed that he was not the competent authority. The State Government in its enquiry reiterated that the Principal was not the appointing authority for the post of Clay Figure Modular on which post the petitioner was appointed by the Principal and that she was illegally transferred to the post of Instructor thereafter the same was also govt approved by the Chancellor. We have not touched the claims with respect to the other employees' appointment/promotion but on the basis of the said report dated 13.7.2010, the State Government issued an order on 18.8.2010 (impugned order) by means of which it directed the University to revert the illegally promoted persons to their substantive posts and apprise the action taken to the State Government. It also made it clear that if there is any illegality or impediment or there is any other order issued by the State Government contrary to the aforesaid directions, then the guidance can be taken from the State Government itself. On the objection raised by the audit team, the University also constituted a committee to meet the objections raised therein and the committee in its meeting dated 24th of June, 2010 resolved that the objections raised by the Assistant Director, Local Audit Accounts on 15.6.2005 have already been removed and therefore, the objections be taken to be disposed of accordingly. This committee consisted of the following members: (1)Dr. A.K. Sengupta, Faculty of Arts (Chairperson) (2)Sri Ranjeet Yadav, Dy. Registrar (Accounts) (3)Sri Ratneshwar Bharti Accounts Officer Before this committee, the file of the petitioner was also placed. This committee consisted of the following members: (1)Dr. A.K. Sengupta, Faculty of Arts (Chairperson) (2)Sri Ranjeet Yadav, Dy. Registrar (Accounts) (3)Sri Ratneshwar Bharti Accounts Officer Before this committee, the file of the petitioner was also placed. Counsel for the petitioner has submitted that the State Government was having no jurisdiction or authority to issue any direction with respect to the appointment/promotion/award of pay-scale to the petitioner, who was an employee of the autonomous Body, namely, the University and therefore, any direction issued by the State Government being per se illegal and without jurisdiction would have no sanctity in the eyes of law nor was sufficient to question the appointment of the petitioner nor she can be denied her legitimate claim of having been paid senior pay-scale of Lecturer's Grade. Sri Tanweer Ahmad Sidiqui appearing for the University has vehemently opposed the writ petition saying that it having come to the knowledge of the State Government that the very appointment of the petitioner was illegal, her continuance on such post or her promotion cannot be sustained for the reason that they were not provided by the competent authority. The Court would not interfere so as to perpetuate any illegality and allow the petitioner to take advantage of the situation for which she herself is responsible. He further submitted that under Section 8 of the State Universities Act, 1973, the power of visitation would include the power to check the illegal appointments, as the University is being funded by the State Government. This apart, he also relies upon Section 66-A of the Act which says that the State Government may issue such directions from time to time to a University on policy matters, not inconsistent with the provisions of this Act as it may deem necessary and such direction be complied with by the University.. Sri Ashok Shukla appearing for the State also defended the action of the State Government saying that the State was having full authority to issue a direction under Sections 8 or 21 (3) (4) of the Act. Sri Ashok Shukla appearing for the State also defended the action of the State Government saying that the State was having full authority to issue a direction under Sections 8 or 21 (3) (4) of the Act. Before we proceed to discuss the arguments raised from both the sides, it would be significant to mention, at the outset, that so far as the appointment of the petitioner on the post of Clay Figure Modular is concerned that was made by the Principal after he had advertised the post and thereafter selection had taken place by the selection committee which was again constituted by the Principal. The audit report on which the State Government's enquiry is based and the orders have been issued only says that it could not be verified that the Principal was the appointing authority of the post of Clay Figure Modular but if the Principal is not the appointing authority then who was the appointing authority was not answered. The appointment of the petitioner was made after selection and there was no role of the petitioner in getting herself appointed on the post of Clay Figure Modular by the Principal. She applied in pursuance of the advertisement and in fact 22 persons applied for the said post and on her being so selected, the appointment order was issued under the signatures of the Principal and therefore, it cannot be said that the petitioner had misrepresented any information or obtained the appointment by exerting pressure or otherwise. The petitioner was also confirmed on the post of Clay Figure Modular and thereafter in the year 1995, she was transferred on the post of Instructor with the approval of the Vice-chancellor. The State Government issued a Government Order on 17th of October, 1998 for giving the designation of Lecturer to all the Instructors who were possessed of the requisite qualifications of Lecturers as laid down by UGC/State Government. The Pro Vice-chancellor in response to the letter dated 9th of November, 1998 of the Principal informed him that the Vice-chancellor has constituted a committee consisting of the following persons for considering the award of the designation of Lecturer to the Instructors: (1)Pro Vice-chancellor (2)Principal of the Arts and Crafts College (3)Prof. R.C. Nagpal, Law Department, Lucknow University. The Committee aforesaid met on 28th of November, 1998 and considered the cases of 10 Instructors including the petitioner. R.C. Nagpal, Law Department, Lucknow University. The Committee aforesaid met on 28th of November, 1998 and considered the cases of 10 Instructors including the petitioner. The qualifications of these persons were also tested so as to find out that they were possessed with the requisite qualifications of Lecturer. The committee recommended for the designation of the Lecturer being given to these persons including the petitioner. The recommendation of the committee was accepted by the then Vice-chancellor Prof. Ruop Rekha Verma on 11th of December, 1998 and in pursuance of the said approval of the Vice-chancellor, the petitioner was given the designation of Lecturer on 15th of December, 1998. It is also evident from the own enquiry report of the State Government that in pursuance of the Government Order dated 17th of October, 1998 another six members' committee was constituted under the Chairmanship of Pro Vice-chancellor by the Executive Council to consider the award of designation of Lecturer and pay-scale to the persons who were working as Clay Figure Modular, Drawing Master and Stone Carbon on the basis of nature of their duties, if they were possessed with the requisite qualifications treating them to be equivalent to the Instructors. This Committee met on 27th of October, 1999 and the Executive Council approved the recommendation of this Committee for giving such nomenclature of Lecturer to Clay Figure Modular, Drawing Master and Stone Carbon on 21st of December, 1999. However, the Chancellor suo moto took cognizance of the aforesaid news published in the newspaper and stayed the proceedings while asking for the report from the University. The University submitted its report on 29th of May, 2000 to the Chancellor who on consideration of the issue found that the giving of nomenclature of the Lecturer to these persons was in accordance with rules and was valid. Approval was, thus, given by the Chancellor on 9th of August, 2000. On approval being given by the Chancellor who found that the decision of the committee approved by the Executive Council was valid, the Vice-chancellor issued orders on 19th of August, 2000 giving the nomenclature of Lecturer to Clay Figure Modular, Drawing Master or Stone Carbon. This power by the Chancellor was exercised 'suo moto' on the news published in the newspapers and therefore, it is obviously attributable to Section 68 of the Act. This power by the Chancellor was exercised 'suo moto' on the news published in the newspapers and therefore, it is obviously attributable to Section 68 of the Act. The plea of the respondents that the appointment of the petitioner, even on the post of Clay Figure Modular was not made by the competent authority and that she was also illegally transferred to the post of Instructor which was a post to be filled up by direct recruitment and that the award of nomenclature of Lecturer under the Government Order dated 17th of October, 1998 was per se without any authority, is to be tested in the light whether the petitioner while seeking appointment misrepresented any fact and also once the Chancellor has approved the nomenclature of Lecturer given to her whether the State Government can issue any direction to the contrary and even if so whether the University, Executive Council or the Vice-chancellor would decide the matter in a way which would nullify the approval granted by the Chancellor or in other words whether the University can take a decision which runs contrary to the decision taken by the Chancellor and which has already attained finality and has not been questioned in any superior forum or the Court of law, though the order passed by the Chancellor is quasi judicial in nature. On the plea that the Principal not being the appointing authority of the Clay Figure Modular, though there is nothing on record to substantiate as to who was the appointing authority on the date when the petitioner was appointed but it has been urged that all appointments were to be made by the Executive Council. She was appointed in pursuance of the advertisement published by the Principal where a large number of candidates applied and she was selected by the selection committee. Reliance has been placed upon Section 21 (vii) of the Act which says that the Executive Council is the appointing authority of the entire staff of the University. Reliance has also been placed upon Section 21 (3). The bare reading of Section 21 (3) of the Act, it reveals that the same is not attracted in the case of appointments and therefore, we need not deal with the same any further. Reliance has also been placed upon Section 21 (3). The bare reading of Section 21 (3) of the Act, it reveals that the same is not attracted in the case of appointments and therefore, we need not deal with the same any further. In regard to the plea that the Executive Council is the appointing authority of all the employees and staff including teaching & non-teaching suffice would be to mention that no such finding has been recorded by the audit team or in the enquiry report of the State Government nor in the order passed by the State Government. Counsel for the petitioner says that usually the appointments of class III employees are made by the Head of the Department or the Principal but in this regard also there is nothing on record. The order of the State Government does not say nor directs that the petitioner's appointment as Clay Figure Modular be cancelled, therefore, it is not necessary for us to address upon the issue of the appointing authority of the post of Clay Figure Modular when the petitioner was appointed as such. The directive of the State Government only says that the persons who have been illegally promoted they should be reverted to the substantiate post. The petitioner was allegedly illegally promoted on the post of Instructor and thereafter designation of Lecturer was given and thus in plain words, she was illegally promoted on the designated post of Lecturer. The effect of the order of the State Government would be that she should be deprived of the nomenclature of Lecturer and should be sent back to the post of Clay Figure Modular. So far the appointment or grant of designation of Lecturer is concerned, it has already come on record and referred above that in the meeting held on 27th of October, 1999, the six members' committee headed by Pro Vice-chancellor had considered the grant of nomenclature of Lecturer even to Clay Figure Modular, Drawing Master and Stone Carbon who were possessed with the requisite qualifications of the Lecturer and also there being no case of the respondents that the petitioner was not possessed with the requisite qualifications or was not working previously as Clay Figure Modular, therefore, even if she could not been transferred on the post of Instructor still the benefit of designation of Lecturer could be claimed by her. It is also clear from the record that the award of designation of Lecturer to the petitioner was done on the recommendation made by a committee which was constituted by the Vice-chancellor in pursuance of the Government Order dated 17th of October, 1998 and this approval was given by the Vice-chancellor. Later on the Chancellor also approved and found that exercise undertaken for the purpose of giving the nomenclature of Lecturer was valid and thus the matter came to an end. No person had challenged her appointment or the grant of nomenclature of Lecturer but only a ex-member of the Executive Council appears to have made some complaint to the State Government and the State Government has initiated the action on its own. Section 66-A does not permit the State Government to issue directions in the matters of appointment or day to day functioning of the University as directions can be issued only on policy matters. In the case of Rakesh Ranjan Verma Vs. State of Bihar; AIR 1992 (SC) 1348 , almost same provision was interpreted wherein provision of Section 78-A of the Electricity (Supply) Act, 1948 was considered and it was held by the Apex Court that such power does not vest with the State Government to issue any direction in respect to terms & conditions of the appointments. The State Government was having no power either to make enquiry or to issue any direction which varies the terms & conditions of the appointment of the petitioner that too after she had retired on attaining the age of superannuation. The enquiry itself was conducted on 13th of July, 2010 i.e. after the retirement of the petitioner. Also, the plea of the petitioner that in case such a power is read under Section 66-A or any other provision of the Act or so to say the plenary power of the State Government as argued by the respondents over the functions of the University, would mean nullifying the orders passed by the Vice-chancellor and the Chancellor by the State Government under the Act, which is not permissible. The University is an Autonomous Body and any decision with respect to the terms & conditions to the appointments of any teaching staff or non-teaching staff is to be taken by the University whereas the Chancellor is the highest authority. The University is an Autonomous Body and any decision with respect to the terms & conditions to the appointments of any teaching staff or non-teaching staff is to be taken by the University whereas the Chancellor is the highest authority. For the reasons aforesaid, we hold that the State Government was having no jurisdiction or authority to initiate any proceedings against the petitioner or to issue any direction to the detriment of the petitioner in the matter of her terms & conditions of her appointment. Sri Tanweer Ahmad Sidiqui has relied upon the judgment of the Apex Court in the case of M.S. Patil (Dr.) Vs. Gulbarga University and Others; (2010) 10 Supreme Court Cases 63 where the plea of the appellant that he was continuing on the post of Reader for last 17 years did not persuade the Court to allow him to continue as such and while dismissing the civil appeal filed by him, a cost of Rs. 50,000/- was imposed. In the said case, the appellant misrepresented while taking appointment as he did not belong to the category for which the post was advertised and his appointment was challenged soon after his appointment in the High Court. The learned Single Judge quashed the appointment order. The Division Bench also upheld the order and in civil appeal also before the Apex Court an interim order was passed and therefore, on the basis of interim order he continued for such long years, though his appointment was challenged immediately in the appropriate forum. In the instant case, the appointment of the petitioner has never been challenged. She had not reached the age of superannuation after putting 17 years' service on the basis of interim orders passed by the Court. There was no fault of the petitioner in seeking employment. The post of Clay Figure Modular was advertised in the newspapers under the signatures of the Principal. The selection committee was constituted, she faced the selection committee as bona fide candidate and she was fortunate enough to be selected. Later on, in pursuance of the Government order issued on 17th of October, 1998, she was given the nomenclature of Lecturer which was again duly approved by the Vice-chancellor and of course by the Chancellor. Thus, it cannot be said that the petitioner on her own get the appointment by misrepresentation. Later on, in pursuance of the Government order issued on 17th of October, 1998, she was given the nomenclature of Lecturer which was again duly approved by the Vice-chancellor and of course by the Chancellor. Thus, it cannot be said that the petitioner on her own get the appointment by misrepresentation. It was the bona fide act of the petitioner and therefore, the petitioner cannot be subjected to a punitive order that too without affording any opportunity at the behest of the State Government which has no jurisdiction, either to initiate any such enquiry or to issue any direction. Reliance has also been placed upon Dr. Ram Murti Chaturvedi Vs. Chancellor, Sampurnand Sanskrit Vishvavidalaya, Varanasi, Raj Bhawan, Lucknow and others; [ (1998) 2 UPLBEC 1217 ] where a Division Bench of this Court found that the appointee was neither qualified nor was appointed in appropriate manner and therefore, the order passed by the Chancellor setting aside the same was not against the law. The Court ordered that arbitrary action cannot be allowed to stand. In the said case also, the appointment was set aside by the competent authority under the Act, namely, the Chancellor and therefore, the Court did not interfere. Here, we have found that the State Government was having no authority to intervene in the matter and to issue any such orders, we, therefore, the plea of the petitioner that the State Government was having no jurisdiction under the State Universities Act, 1973 to make any enquiry or to issue any direction as given in the impugned order dated 18.8.2010, quash the order dated 18.8.2010, the same being wholly without jurisdiction. In the result the writ petition succeeds and is allowed. ____________