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Allahabad High Court · body

2019 DIGILAW 106 (ALL)

Bhupendra Tiwari v. Union of India

2019-01-11

ASHWANI KUMAR MISHRA

body2019
JUDGMENT : Ashwani Kumar Mishra, J. These writ petitions raise common questions of law and fact and have been heard together and, therefore, are being disposed of by this common order. Writ Petition No. 27162 of 2018 is taken as the lead case. Fifteen petitioners have joined together in the lead case while challenging an advertisement issued by the University of Allahabad proposing to outsource various job work/task on contract basis, through deployment of manpower and supervision of work spot in the University of Allahabad. The notice inviting tender as also its conditions are contained in Annexure-1 and are assailed. 2. According to the petitioners various substantive vacancies came into existence in different offices of the University of Allahabad in the year 2010. The Deputy Registrar (Examination) submitted a note to the examination controller for permitting engagement to be made against such vacancies. It is alleged that through a series of Inter Departmental Communications the petitioners were engaged and they have been continuing as such in the office of the controller of examination for the last about 7-8 years. It is alleged that vacancies subsists and therefore, there exists no justification for the University to outsource work and thereby interfere with their functioning. 3. Petitioners have also sought parity with an order passed by this Court on 15.5.2018, in Writ Petition No.7489 of 2018 (Krishna Kumar Dubey and others Vs. Union of India and others) which is extracted hereinafter:- "Pursuant to the order passed by this Court on 11.04.2018 as well as the subsequent order passed on 27.04.2018, a short counter affidavit has been filed on behalf of respondent no. 3 stating that a Committee has been constituted to look into the matter and a prayer has been made to grant a month's time for the Committee to submit its report. Learned counsel for the petitioners contends that in terms of the orders passed by this Court, the Vice Chancellor of the University was, himself, required to look into the matter, but nothing has been done and the petitioners are on the verge of starvation. In the facts and circumstances of the present case, as also considering the observations made in the order dated 11.04.2018, it would be appropriate to grant 10 days' time to the concerned respondent to conduct the inquiry and to take a decision in the matter. In the facts and circumstances of the present case, as also considering the observations made in the order dated 11.04.2018, it would be appropriate to grant 10 days' time to the concerned respondent to conduct the inquiry and to take a decision in the matter. It is noticed that the working of the petitioners in the examination department is admitted by the Officers of the University itself and this Court cannot shut its eyes to the concern of the petitioners, who claim to be working in the University without any salary for the last over 40 months. The Vice Chancellor of the University is requested to instruct the Committee to take the matter on priority and to conclude its inquiry so that the stand of the University is placed before this Court and a final decision, in accordance with law, is taken. Let this matter appear, once again, at the top of the list on 28.05.2018. Office shall send records of the connected Writ A No. 7532 of 2018 (Gopesh Kumar and Others Vs. Union of India and Others) when the matter is listed next". Order of this Court dated 11.4.2018, referred to in the aforesaid order, is also reproduced:- "Supplementary affidavit filed today is taken on record. Petitioners, who are twelve in number, claim to be working in the examination department of the University since 2015, without any complaint. They have approached this Court with the grievance that though they are working but salary is not paid to them for the last 40 months. Attention of the Court has been invited to a letter dated 2.11.2017, send by the Joint Registrar, Examination to the Controller of Examination, clearly admitting that such persons are working since 2015, without any salary. Conduct of examination is an important part of the functioning of a Central University. The allegation that though persons are working in the examination cell, yet are not receiving any salary for the last 40 months is a serious matter. Before proceeding further, it would be appropriate to permit the Vice-Chancellor of the University to look into the matter and take a decision. Such a decision shall be placed before this Court alongwith affidavit of the Vice-Chancellor of the University, clarifying the situation. The required affidavit shall be filed by the next date fixed. Post as fresh on 27.4.2018". 4. Before proceeding further, it would be appropriate to permit the Vice-Chancellor of the University to look into the matter and take a decision. Such a decision shall be placed before this Court alongwith affidavit of the Vice-Chancellor of the University, clarifying the situation. The required affidavit shall be filed by the next date fixed. Post as fresh on 27.4.2018". 4. As petitioners have sought parity with the order dated 15.5.2018 passed in Writ Petition No. 7489 of 2018, this Court while entertaining the writ petition directed the records of Writ Petition No. 7489 of 2018 also to be connected with leading petition. Certain other petitions, filed by similarly placed persons have also been connected, and that is how all these petitions have been clubbed and heard together. 5. Learned counsel for the petitioner in all the writ petitions submit that petitioners have been appointed by the University of Allahabad and are working since 2010 in the office of controller of examination and other officers of University without any complaint. According to the petitioners, they have not been paid wages continuously. Allegation is that some of the petitioners although are working since 2015, yet they are not being paid wages due to them. 6. Pursuant to the orders passed by this Court in the Writ Petition No. 7489 of 2018, a supplementary counter affidavit is filed by the Vice-Chancellor in which it is alleged that Executive Council of the University has already passed a resolution on 2.11.2014 to dispense with the services of persons, such as petitioners, and not to engage them after 31.1.2015. It is also submitted that in case any engagement is made in teeth of resolution of Executive Council, it ought not be treated as a valid engagement. 7. Sri Ashok Mehta, learned Senior Advocate, assisted by Sri Chandan Sharma as well as Sri Neeraj Tripathi, Advocate have appeared for the University and submit that a seven member committee has been constituted to evaluate the number of existing non teaching vacancies in the University and that necessary action would be taken to fill up said vacancies as per law. Sri Mehta also states that more than approximantely 400 such vacancies exists and are required to be filled up by the University. Sri Mehta also states that more than approximantely 400 such vacancies exists and are required to be filled up by the University. Two member committee is also stated to have been constituted to examine the grievance raised by the petitioners regarding their non release of salary for the last nearly 3 years. It is further submitted that part of dues payable to petitioners have been released and that remaining amount found due and payable shall be released shortly. 8. Facts, which have been noticed above, would clearly go to show that everything is not well in the University of Allahabad so far as engagement of non-teaching staff is concerned. It is admitted on record that large number of vacancies have come into existence in the University over the last several years and persons, such as petitioners, have been engaged by the University without following any procedure for recruitment. It is also alleged by the petitioners that such engagement has continued for long in the University and most of such persons have been regularized in the past, in due course. What is disturbing is that engagement of these persons is in brazen violation of the constitutional norms, inasmuch as neither any vacancy has ever been advertised, nor any transparent system of engagement has been followed. The provisions contained in Article 14 and 16 of the Constitution of India have been given a complete go by. What is surprising is that there is not a single effective advertisement made in the last about 8-10 years to recruit non-teaching staff. Various notes and materials have been filed alongwith the writ petition which would go to show that engagement of all the petitioners were made on the basis of some inter departmental correspondence in which necessity was recorded for engaging persons against vacant position. There is, however, no direction issued by any of the competent authority for recruitment to be made in accordance with law. 9. University of Allahabad is a Central University and its functionaries are expected to be aware of the provisions of applicable laws for regulating recruitment by following the dictum laid down in Articles 14 and 16 of the Constitution of India. It is by now well settled that no public appointment can be offered except by following a procedure which is fair and transparent and gives right to all eligible persons to apply against it. It is by now well settled that no public appointment can be offered except by following a procedure which is fair and transparent and gives right to all eligible persons to apply against it. Advertisement in two well known news-papers having wide circulation is by now the settled norm that is required to be followed before engaging such persons, even if it is made on ad-hoc or temporary basis. 10. Any back-door engagement made in a clandestine manner cannot have the approval of law. The manner in which petitioners have been engaged leaves much to be desired. Engagement of hundreds of persons, in a like manner in a premier Central University, is a matter of serious concern. Once such facts have come on record before this Court, it would be imperative to record strong disapproval of it as this Court cannot be a mute spectator to brazen acts of constitutional violation. 11. A Division Bench of this Court, faced with somewhat similar situation, observed as under in Abhilasha Mishra Vs. State of U.P. and others, (2015) 6 ADJ 279 :- "25. The Court, in the facts of the present case, is constrained to inquire as to whether considerations other than the interest of education pervial in the mind of the concerned officials of the department of education in the State, while appointing Respondent Nos. 4 to 6. Response is required from the Principal Secretary/Chief Secretary of the State. We regret to observe that the entire education in State is being ruined because of incompetent persons being appointed to hold selection for the post of Principals/Lecturers and L.T. Grade Teachers of the recognised intermediate college. The Court will not be a mute spectator. The State cannot be permitted to break the backbone of education system on which our democratic polity professes to thrive. We are compelled to interfere not only in law but for wider cause of education in the State itself." 12. Observations of the Apex Court in State of Orissa and another Vs. Mamta Mohanty, (2011) 3 SCC 436 in para-18 would be apposite in the facts of the present case and are, therefore, reproduced:- "18. At one time this Court had been of the view that calling the names from Employment Exchange would curb to certain extent the menace of nepotism and corruption in public employment. Mamta Mohanty, (2011) 3 SCC 436 in para-18 would be apposite in the facts of the present case and are, therefore, reproduced:- "18. At one time this Court had been of the view that calling the names from Employment Exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in Radio and Television as merely calling the names from the Employment Exchange does not meet the requirement of the said Article of the Constitution. (Vide: Delhi Development Horticulture Employees Union v. Delhi Administration, Delhi & Ors., (1992) AIR SC 789)." 13. University of Allahabad has acquired status of a Central University pursuant to a notification issued by the Government of India, Ministry of Human Resources Development, dated 14.7.2005. A Parliamentary enactment i.e. 'University of Allahabad Act, 2005' now regulates it. Section 27 of the Act of 2005 provides for framing of Statutes to provide for various exigency including conditions of service of the employees of University. Clause-(g) of Section 27 is explicit in that regard. Statute 21 provides that all the employees of the University, other than the academic staff, shall, in the absence of any contract to the contrary, be governed by the terms and conditions of service and code of conduct as are specified in the Statutes, the Ordinances and Regulations. Sub Statute (ii) of Statute-21 further contemplates that the manner of appointments and emoluments of employees, other than the academic staff, shall be such as may be prescribed by the Ordinances. The Ordinances have also been framed for the University of Allahabad. The Schedule to Ordinance-L comprises of 'The University of Allahabad Non-teaching Employees (Terms and Conditions of Service) Rules'. Sub Statute (ii) of Statute-21 further contemplates that the manner of appointments and emoluments of employees, other than the academic staff, shall be such as may be prescribed by the Ordinances. The Ordinances have also been framed for the University of Allahabad. The Schedule to Ordinance-L comprises of 'The University of Allahabad Non-teaching Employees (Terms and Conditions of Service) Rules'. As per it, all appointments in the University are to be made by the Executive Council or by an authority to whom the power to make such appointment is assigned by the Statutes, or the Ordinances or delegated by the Executive Council or by the Governing Body to whom such powers are specifically delegated. Proviso (ii) of Clause-6 contemplates that such appointment shall be made on the recommendations of selection Committee appointed for the purpose, from time to time, in accordance with the prescriptions of the Statutes and the Ordinances, or where provision for the same has not been made therein, the directions of the Executive Council. Detailed provisions exists with regard to procedure to be followed for recruitment to non-teaching post as also its nature etc. 14. It is admitted on record that none of the petitioners have been appointed by the Executive Council in terms of the provisions contained in Clause 6 contained in Schedule-II to Ordinance-L. 15. Learned Senior Counsel for the respondent-University states that though a specific reference is not made in the Statute to publication of vacancies in well known news papers but it has been a practice followed in the past for all valid appointments to be made by publication of vacancy in two well known news papers and that such a requirement cannot be avoided otherwise in view of the Constitutional scheme contained under Article 16 of the Constitution of India. Apex Court in State of Orissa and another Vs. Mamta Mohanty (supra) has further been pleased to observe as under in para-19:- "19. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit." (emphasis supplied) 16. On the basis of the instructions received from the University, learned Senior Counsel, Sri Mehta states that though advertisements were issued for appointment to certain non-teaching posts by the University in the year 2016, but no appointment was actually made pursuant to it. It is further alleged that an advertisement has been issued by the University in the year, 2018 also, which includes certain non-teaching positions but they are limited in number. Court is assured that all existing non-teaching vacancies in the University would be filled henceforth in a transparent manner, as per applicable statutory provisions by following the mandate of Article 16 of the Constitution of India. 17. It would be relevant to notice at this stage that learned Senior Counsel for the University initially made an attempt to justify recruitment of man power by way of outsourcing by relying upon certain circulars issued by the Central Government as well as the General Financial Rules 2017. Reliance was placed upon Rule-177 and 178 which are reproduced:- "177. Consulting Service" means any subject matter of procurement (which as distinguished from 'Non- Consultancy Services' involves primarily non-physical project-specific, intellectual and procedural processes where outcomes/deliverables would vary from one consultant to another), other than goods or works, except those incidental or consequential to the service, and includes professional, intellectual, training and advisory services or any other service classified or declared as such by a procuring entity but does not include direct engagement of a retired Government servant. Note: These Services typically involve providing expert or strategic advice e.g., management consultants, policy consultants, communications consultants, Advisory and project related Consulting Services which include, feasibility studies, project management, engineering services, finance, accounting and taxation services, training and development etc. 178 The Ministries or Departments may hire external professionals, consultancy firms or consultants (referred to as consultant hereinafter) for a specific job, which is well defined in terms of content and time frame for its completion". 18. Although the aforesaid provision of the General Financial Rules have been relied upon but no direction of the Central Government could be placed before the Court, which may go to show that the aforesaid rules have been made applicable upon the University of Allahabad. Such contention otherwise does not appeal to the Court inasmuch as once the University itself is a statutory body governed by the provisions of the Act of 2005, Statutes as well as Ordinances framed there under, the exercise of power by the University for the purposes of recruitment would have to be necessarily in accordance with it. It has otherwise not been shown that the competent authority under the Act, Statutes or Ordinances, has adopted the provisions of the aforesaid General Financial Rules or that the Executive Council has made itself bound by the aforesaid Rules. In such view of the matter, it would not be open for the University in the existing statutory scheme to engage persons by way of outsourcing. 19. Sri Ashok Mehta, learned counsel for the respondent-University, in such circumstances, states that the University shall proceed to act strictly in accordance with law, and would make regular recruitment after advertisement of vacancies in two well-known news papers, having wide circulation, and by following the provisions contained in the Act, Rules and the Ordinances. 20. In view of the stand taken by the University, it would be appropriate to direct the University to act strictly in accordance with the dictum of Article 16 of the Constitution of India, and proceed to fill up all sanctioned non-teaching posts by making recruitment after publication of vacancies in accordance with the Act, Rules and the Ordinances. Such exercise would be undertaken at the earliest possible, preferably within a period of 4 months from today. 21. Such exercise would be undertaken at the earliest possible, preferably within a period of 4 months from today. 21. Considering the fact that petitioners have not been engaged after following any transparent procedure and that there claim for regularization is otherwise not covered by any statutory rules, no direction can be issued for considering their claim for continuance or continuance/regularization in view of the law laid down by the Apex Court in Secretary, State of Karnataka vs. Uma Devi and others reported in, (2006) 4 SCC 1 . As the engagement of petitioners is found to be by way of back door entry, any semblance of equality or right is not created in them to be substantively appointed on account of their continuance for the last 7-8 years alone. It shall, however, be open for the University to consider their continuance till regular selections are made in case the exigency so requires. Such engagement, however, would not create any equity in them or entitlement to continue or to be regularized in the absence of rules framed for the purpose. 22. It may also be noticed that the law is settled that regularisation can be made only if there exists appropriate rules for regularisation. No provision has been shown in the Rules, where under, regularisation is made permissible in the University of Allahabad. Although attempt has been made on behalf of the petitioners to seek benefit of regularisation with reference to Clause-17 of the Ordinances, but such a plea also cannot be sustained inasmuch as Clause-17 of the Ordinances would be applicable only where engagement was made on temporary or non regular basis prior to commencement of Ordinance-L. Admittedly, none of the petitioners have been engaged prior to commencement of Ordinance-L in the year 2005. 23. In view of the stand taken by the University that a two member committee has already been constituted to look into the grievance of petitioners for release of their withheld dues/wages, it would be appropriate to direct the University to have their claims verified and pass speaking orders in that regard so that balance dues, if any, payable to them are released within two months. 24. 24. Before parting, it would be desirable to observe that as the petitioners have been continuing for the last nearly 8 years and many of them may have become over age, the University may consider their claim for grant of age relaxation, as and when vacancies are advertised, so that such persons are also given a chance to compete alongwith others. However, no preference would be given to them on account of their engagement, particularly, as their entry was not after following any transparent procedure. 25. Subject to the aforesaid observations, all the writ petitions are consigned to records.