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Allahabad High Court · body

2015 DIGILAW 504 (ALL)

SUCHITRA MITRA v. UNION OF INDIA

2015-03-19

DILIP GUPTA, VINOD KUMAR MISRA

body2015
JUDGMENT By the Court.—The petitioners are Associate Professors in the Department of Sanskrit in the University of Allahabad (‘the University’). They have filed this petition for a direction upon the respondents to convene a meeting of the Selection Committee so that they may be considered for grant of promotion on the post of Professors under the Career Advancement Scheme (‘the Scheme’) which has been framed by the University Grants Commission under the provisions of the University Grants Commission Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education 2010 (‘the 2010 Regulations’). 2. It is stated that the University is incorporated under the provisions of the University of Allahabad Act, 2005 (‘the Act’). The University Grants Commission by a notification dated 30 June 2010 has notified the 2010 Regulations under clauses (e) and (g) of sub-section (1) of Section 26 of the University Grants Commission Act, 1956 in supersession of the earlier University Grants Commission Regulations, 2000. The Regulations apply among others to, every University established by or under a Central Act or a State Act. 3. The procedure for selection for promotions under the Scheme is provided for in clause (6) of the 2010 Regulations. According to the petitioners they fulfil all the eligibility criteria for being considered for promotion as Professors under the Scheme. 4. The petitioners have asserted that the office of the Vice-Chancellor of the University fell vacant and presently in terms of Statute 2 (6) of the Statutes of University, the senior most Professor in the University is holding the office of the Vice-Chancellor of the University and though he is required to perform the duties of the Vice-Chancellor until a new Vice-Chancellor assumes office, meetings of the Selection Committee for granting promotion under the Scheme are not being convened. 5. A counter-affidavit has been filed on behalf of the University. It has been stated that on the resignation of the regular Vice-Chancellor of the University, the senior most Professor of the University namely Professor N.R. Farooqui took over the charge of the Vice-Chancellor of the University on 28 July 2014. 5. A counter-affidavit has been filed on behalf of the University. It has been stated that on the resignation of the regular Vice-Chancellor of the University, the senior most Professor of the University namely Professor N.R. Farooqui took over the charge of the Vice-Chancellor of the University on 28 July 2014. It has further been stated that it is because of the communications dated 7 August 2014 and 9 October 2014 sent by the Ministry of Human Resources and Development in the Department of Higher Education that the Acting Vice-Chancellor of the University is not convening the meetings of the Selection Committee. 6. It is the submission of Dr. Y.K. Srivastava, learned counsel appearing for the petitioners that the restrictions contained in the communications dated 7 August 2014 and 9 October 2014 which require the Acting Vice-Chancellor of the Universities to act in accordance with Rule 12(2) of CCS(CCA) Rules, 1965 and perform routine nature of work of the University including meeting appointments on temporary basis and convening the meetings of Committees like Finance Committee, Executive Council and Academic Council but excluding taking any decision for amending the Statutes, introducing new Ordinances or amending the Ordinances, appointment of permanent teaching and non teaching staff, creation of new posts would not be applicable to the University. It is his submission that Acting Vice-Chancellor of the University has to function in accordance with the provisions of the Act and the Statutes of the University and since there is no provision in the Act or the Statutes which prohibits the Acting Vice-Chancellor from making permanent appointments, the Ministry of Human Resource Development in the Government of India cannot restrict the powers of the Acting Vice-Chancellor. Learned counsel submitted that, in fact, in view of provisions of Statute 2(6) of the Statutes of the University, the Acting Vice-Chancellor has an obligation to perform all the duties of the Vice-Chancellor. 7. Learned counsel for the petitioner also pointed out that the Executive Council of the University in its meeting held on 20 September 2014 had resolved to grant promotion to Associate Professors and Assistant Professors in the Department of Botany, Earth & Planetary Science, Defence Studies and Commerce under the Scheme and, therefore, promotion to the petitioners on the basis of the aforesaid communications is being denied for arbitrary reasons. In this connection learned counsel has placed before the Court the communication dated 22 December 2014 sent by the Deputy Registrar (Administration) a copy of which has been enclosed as Annexure-6 to the writ petition. 8. Sri V.K. Singh, learned Senior Counsel appearing for the University has, however, submitted that meeting of the Selection Committee in the Department of Sanskrit for granting promotion under the Scheme is not being convened solely for the reason that the Government of India has sent the communications dated 7 August 2014 and 9 August 2014 wherein the Acting Vice-Chancellor of a Central University has been prohibited from making any permanent appointment. 9. Sri Ashok Mehta, learned Additional Solicitor General of India assisted by Sri Krishna Agarwal has defended the two communications sent by the Ministry of Human Resource Development in the Government of India. It is his contention that it is in the interest of a University that the Acting Vice-Chancellors should not make any permanent appointments. 10. We have considered the submissions advanced by learned counsel for the parties. 11. It is not in dispute that at present the office of the Vice-Chancellor of the University is vacant. Professor N.R. Farooqui has been functioning as the Acting Vice-Chancellor of the University since 28 July 2014. Statute 2(6) of the Statutes of the University provides that if the office of the Vice-Chancellor becomes vacant due to death, resignation or otherwise, or if the Vice-Chancellor is unable to perform his duties due to ill-health or any other cause, the Pro Vice-Chancellor shall perform the duties of the Vice-Chancellor but if the Pro-Vice-Chancellor is not available, the senior most Professor shall perform the duties of the Vice-Chancellor until a new Vice-Chancellor assumes office or until the existing Vice -Chancellor resumes the duties of his office. It is, therefore, clear that in the absence of Pro-Vice-Chancellor of the University, the senior most Professor in the University has to perform the duties of the Vice-Chancellor until a new Vice-Chancellor assumes office. 12. The Vice-Chancellor is an ‘Officer’ of the University as provided for in Section 12 of the Act. Section 14(2) of the Act provides that the Vice-Chancellor of the University is the principal executive and academic officer of the University and shall exercise general supervision and control over the affairs of the University and give effect to all the decisions of the authorities of the University. Section 14(2) of the Act provides that the Vice-Chancellor of the University is the principal executive and academic officer of the University and shall exercise general supervision and control over the affairs of the University and give effect to all the decisions of the authorities of the University. The Vice-Chancellor under sub Section (5) of Section 14 exercises such other powers and performs such other duties as may be prescribed by the Statutes or the Ordinances. 13. Statute 3 provides that the Vice-Chancellor shall be the ex Officio Chairman of the Executive Council, the Academic Council and the Finance Committee and shall in the absence of the Chancellor, preside at the Convocations held for conferring degrees and at meetings of the Court. 14. Statute 3 (3) provides that it shall be the duty of the Vice-Chancellor to see that the Act, the Statutes, the Ordinances and the Regulations are duly observed and he shall have all the powers necessary to ensure such observance. 15. Statute 3(5) provides that the Vice-Chancellor shall have the power to convene or cause to be convened the meeting of the Executive Council, the Academic Council and the Finance Committee. 16. Statute 10 provides that the Executive Council has to appoint Professors, Readers, Lecturers and other Academic Staff, as may be necessary in the University. 17. An Acting Vice-Chancellor would, therefore, be the Chairman of the Executive Council, and would have the power to convene meetings of the Selection Committee. This is a power which is not only vested in the Vice-Chancellor of the University but is a power which is also vested in the Acting Vice-Chancellor of the University. 18. It is in the light of the aforesaid provisions of the Act and the Statutes that the impact of the two communications dated 7 August 2014 and 9 October 2014 sent by the Ministry of Human Resource Development has to be examined. We, therefore, consider it appropriate to reproduce the said two letters. 19. 18. It is in the light of the aforesaid provisions of the Act and the Statutes that the impact of the two communications dated 7 August 2014 and 9 October 2014 sent by the Ministry of Human Resource Development has to be examined. We, therefore, consider it appropriate to reproduce the said two letters. 19. The letter dated 7 August 2014 sent by the Ministry of Human Resource Development in the Department of Higher Education, which is addressed to all the Vice-Chancellors of the Central Universities, is as follows : “I would like to bring it to your kind notice that as per the provisions or Rule 12(2) of CCS (CCA) Rules, 1965 an officer appointed to perform the current duties of an appointment can exercise administrative or financial power vested in the full fledged incumbent of the post but he cannot exercise statutory powers, whether those powers are derived direct from an Act of Parllament (e.g. Income Tax Act) or Rules, Regulations and Bye-laws made under various Articles of the Constitution (e.g. Fundamental Rules, Classification, Control and Appeal Rules, Civil Service Regulations, Delegation of Financial Powers Rules, etc.). The Vice-Chancellors who are performing the duties of Acting Vice-Chancellor in their respective Central Universities may take note of the above provision of CCS(CCA) Rules, 1965 and refrain from taking any action in contravention of the said provision.” (emphasis supplied) 20. The letter dated 9 October 2014 of the Ministry of Human Resource Development in the Department of Higher Education, which is also addressed to all the Vice-Chancellors of the Universities, is as follows : “In continuation of this Department’s letter of even number dated 7.8.2014 on the above subject, it is clarified that the Acting Vice-Chancellor can perform the routine nature of work of the University, which includes appointments on temporary basis and convening the meetings of the Committees like Finance Committee, Executive Council and Academic Council. Decisions like amending the Statutes, bringing new ordinances or amending the ordinances, appointment of permanent teaching and non teaching staff, creation of new posts etc. should not be taken up by the acting Vice-Chancellors.” (emphasis supplied) 21. The first letter dated 7 August 2014 refers to the provisions of Rule 12(2) of the CCS (CCA) Rules (‘the Rules’). It has, therefore, to be examined whether these Rules would at all apply to the University. should not be taken up by the acting Vice-Chancellors.” (emphasis supplied) 21. The first letter dated 7 August 2014 refers to the provisions of Rule 12(2) of the CCS (CCA) Rules (‘the Rules’). It has, therefore, to be examined whether these Rules would at all apply to the University. As noted above, the University is governed by the provisions of the Act and the Statutes and Rule 3 of the CCS(CCA) Rules provides that the Rules would be applicable to every Government servant including every civilian Government servant in the Defence Services. Government servant has been defined in Rule 2(h) to mean as follows : “Government servant means a person who (i) is a member of of a Service or holds a civil post under the Union, and includes any such person on foreign service or whose services are temporarily placed at the disposal of a State Government, or a local or other authority; (ii) is a member of a Service or holds a civil post under a State Government and whose services are temporarily placed at the disposal of the Central Government; (iii) is in the service of a local or other authority and whose services are temporarily placed at the disposal of the Central Government.” 22. The Professors of the University are neither members of a service nor do they hold a civil post under the Union nor they are in the service of local or other authority. CCS(CCA) Rules would, therefore, have no application to a Central University. 23. Even otherwise Rule 12(2), on which reliance has been placed in the letter dated 7 August 2014, deals with Disciplinary Authorities and is as follows : “Rule 12: Disciplinary Authorities (1) The President may impose any of the penalties specified in Rule 11 on any Government Servant. CCS(CCA) Rules would, therefore, have no application to a Central University. 23. Even otherwise Rule 12(2), on which reliance has been placed in the letter dated 7 August 2014, deals with Disciplinary Authorities and is as follows : “Rule 12: Disciplinary Authorities (1) The President may impose any of the penalties specified in Rule 11 on any Government Servant. (2) Without prejudice to the provisions of sub-rule (1) subject to the provisions of sub-rule (4), any of the penalties specified in Rule 11 may be imposed on- (a) a member of a Central Civil Service other than the General Central Services, by the appointing authority or the authority specified in the scheduled in his behalf or by any other authority specified in the schedule in this behalf or by any other authority empowered in this behalf by a general or special order of the President; (b) a person appointed to a Central Civil Post included in the General Central Services, by the authority specified in this behalf by a genral or special order of the President or, where no such order has been made, by the appointing authority or the authority specified in the Schedule in this behalf. (3) Subject to the provisions of sub-rule (4), the power to impose any of the penalties specified in Rule 11 may also be exercised, in the case of a member of a Central Civil Service, Group C (other than the Central/Secretariat Clerical Service), or a Central Civil Service, Group D- (a) if he is serving in a Ministry or Department of the Government of India, by the Secretary to the Government of India, in that Ministry or Department or (b) if he is serving in any other office, by the head of that office, except where the head of the office is lower in rank than the authority competent to impose the penalty under sub-rule(2). (4) Notwithstanding anything contained in this Rule : (a) except where the penalty specified in clause (v) or clause (vi) of Rule 11 is imposed by the Comptroller and Auditor-General on a member of the Indian Audit and Accounts Service, no penalty specified in clauses (v) to (ix) of that Rule shall be imposed by any authority subordinate to the appointing authority; (b) where a Government Servant who is a member of a service other than the General Central Service or who has been substantively appointed to any civil post in the General Central Service, is temporarily appointed to any other service or post, the authority competent to impose on such Government Servant any of the penalties specified in clauses (v) to (ix) of Rule 11 shall not impose any such penalties unless it has consulted such authority, not being an authority subordinate to it, as would have been competent under sub-rule (2) to impose on the Government Servant any of the said penalties had he not been appointed to such other service or post; (c) in respect of a probationer undergoing training in Lal Bahadur Shastri National Academy of Administration, the Director of the said Academy shall be the authority competent to impose on such probationer any of the penalties specified in clauses (i) to (iii) of Rule 11 after observing the procedure laid down in Rule 16. Explanation 1.—For the purpose of clause (c) ‘probationer’ means a person appointed to a Central Civil Service on probation. Explanation 2.—Where a Government Servant belonging to a service or holding a Central Civil Post of any class, is promoted, whether on probation or temporarily to the Service or Central Civil Post of the next higher class, he shall be deemed for the purpose of this Rule to belong to their service of, or hold the Central Civil Post of such higher class.” 24. It appears that the letter dated 7 August, 2014 has placed reliance on certain orders issued by the Government of India which provide that the Law Ministry has advised that an officer appointed to perform the current duties of an appointment can exercise administrative or financial powers vested in the full-fledged incumbent of the post but he cannot exercise statutory powers. It is in continuation of the letter dated 7 August 2014 that the subsequent communication dated 9 October 2014 has been sent by the Ministry of Human Resources and Development to the Vice-Chancellors of all the Central Universities that an Acting Vice-Chancellor of the University cannot make permanent appointment. As the CCS(CCA) Rules have no application to Central Universities, any reliance placed on Rule 12(2) of the Rules or the Government Orders referred to will have no application. 25. In such circumstances, the reason assigned by the Acting Vice-Chancellor of the University in not convening meetings of the Selection Committee for granting promotion under the Scheme is not in conformity with the provisions of the Act and Statues of the University. The Acting Vice-Chancellor of the University could not, therefore, have been restrained from discharging his duties under the Act and the Statutes on the basis of the aforesaid Rules. It is the duty of the Acting Vice-Chancellor of the University to convene the meetings of the Selection Committee for granting promotion under the Scheme and indeed the University has been granting appointments under the Scheme even after the communications dated 7 August 2014 and 9 October 2014 as would be clear from the resolution of the Executive Council which has been referred to in the communication dated 22 December 2014. It is, therefore, not possible to accept the contention of Sri V.K. Singh, learned Senior Counsel for the University. 26. The writ petition is, accordingly, allowed. The University shall, therefore, proceed to convene the meetings of the Selection Committee forthwith so that the promotions which are long overdue are granted under the Scheme at the earliest. ——————