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2020 DIGILAW 874 (TS)

K. Suneetha Rani v. University of Hyderabad

2020-12-22

ABHINAND KUMAR SHAVILI

body2020
ORDER : Abhinand Kumar Shavili, J. 1. This Writ Petition is filed seeking a Writ of Mandamus declaring the appointment of the 4th respondent, an Associate Professor, on probation, to the post of Head of the Department, Centre for Women's Studies, University of Hyderabad, Gachibowli, by the 2nd respondent vide proceedings dt. 30-06-2020 with effect from 01-07-2020 and the same is being approved on 27-07-2020 by the 3rd respondent in the appeal made by the petitioner, as illegal and arbitrary and contrary to the Statue 7(1) of the University of Hyderabad Act, 1974 (for brevity 'the Act, 1974') and Clause 4(1) of the Chapter 4 of the Academic Ordinance under the University of Hyderabad Act and consequential direction to the 2nd respondent to appoint the petitioner as the Head of the Centre for Women's Studies, University of Hyderabad, Gachibowli, Hyderabad, as the petitioner alone fulfils all the criteria for the appointment as per the above mentioned Act and Ordinance. 2. Heard Smt. B. Mohana Reddy, learned counsel for the petitioner, Sri V. Krishna Mohan, learned Standing Counsel for the respondent Nos. 1 to 3 and Sri B. Nalin Kumar, learned counsel for 4th respondent. 3. It has been contended by the petitioner that she is senior most professor working in Centre for Women's Studies, University of Hyderabad and she is fully eligible and qualified to be posted as Head of the Department. 4. As per Statute 7(1), which deals with 'Heads of Departments/Centres', each department/Centre shall have a Head who shall be a Professor and whose duties and functions and terms and conditions of appointment shall be prescribed by the Ordinances; Provided that if there is one or more than one Professor in any Department/Centre, the Head of the Department/Centre shall be appointed in the manner prescribed by the Ordinances; Provided further that in a Department/Centre where there is no Professor, Associate Professor shall be appointed as Head of the Department/Centre in the manner prescribed by the ordinances; and Provided also that if there is no Professor or Associate Professor, in a Department/Centre, the Dean of the School concerned shall act as the Head of that Department/Centre. 5. The petitioner has contended that the 2nd respondent, contrary to the Statute 7(1), has appointed the 4th respondent as Head of the Department vide proceedings dt. 30-06-2020 for a period of three years with effect from 01-07-2020. 5. The petitioner has contended that the 2nd respondent, contrary to the Statute 7(1), has appointed the 4th respondent as Head of the Department vide proceedings dt. 30-06-2020 for a period of three years with effect from 01-07-2020. He has further contended that the 4th respondent is not even a Professor and she is far junior to the petitioner and the 4th respondent was appointed as Associate Professor on 05-03-2020 and her probation is also not declared. 6. Learned counsel for the petitioner has further contended that when senior most Professor is available, the respondents cannot ignore the case of the petitioner and appoint the 4th respondent as Head of the Department contrary to the Statute 17(1) of the Statutes of the University. 7. Aggrieved by the same, the petitioner preferred an appeal to the 3rd respondent. The 3rd respondent has confirmed the appointment of the 4th respondent mechanically vide proceedings dt. 27-07-2020. The petitioner has contended that the Statutes and Ordinances are framed under Sections 24, 25 and 26 of the Act, 1974, and as per Statute 7(1) and the Ordinance 4(1) of the Act, 1974, the Head of the Department or Head of the Centre shall be a Professor from the Department. If only the Professor declines to be the Head of the Department, then, the Associate Professor or Dean of Faculty shall act as Head of the Department. The petitioner has further contended that she was Head of the Department during the year 2013 for a period of two years and the Centre for Women Studies became a Statutory Centre vide 159th meeting of the Executive Council held on 27-11-2013 and the Executive Council has approved the recommendations made by the Academic Counsel Meeting vide Minutes of the 71st meeting on 19-09-2013. Thereafter, the Academic Ordinances were amended accordingly and Centre for Women Studies was accordingly made as Statutory Centre vide Statute 17(5)(a). As long as Statutes are in force, the respondents cannot violate the statutes and appoint an ineligible person like 4th respondent as Head of the Centre/Head of the Department. Thereafter, the Academic Ordinances were amended accordingly and Centre for Women Studies was accordingly made as Statutory Centre vide Statute 17(5)(a). As long as Statutes are in force, the respondents cannot violate the statutes and appoint an ineligible person like 4th respondent as Head of the Centre/Head of the Department. Therefore, the learned counsel for the petitioner contends that appropriate orders be passed in the Writ Petition while setting aside the appointment of 4th respondent as Head of the Centre/Head of the Department as it is contrary to the Statute 7(1) and further direct the respondents to consider the case of the petitioner for appointment to the post of Head of the Centre/Head of the Department. 8. Learned Standing Counsel for 4th respondent contends that Centre for Women's Studies is not forming a part of the University and it is only a Centre and receiving financial assistance from the University Grants Commission under its Plan Scheme. For making any Centre or Department as part of University, the Statutes of Ordinances must be amended as per Statute 17(5)(b) which states that no Department/Centre shall be established or abolished except by these Statues; Provided that the Executive Council may, on the recommendation of the Academic Council, establish Centres of study to which may be assigned such teachers of the University as the Executive Council may consider necessary. For establishing any Department or Centre of the University, Statutes are to be amended and for amending the Statutes, the assent of the Visitor has to be obtained. But in the instant case, no such assent was obtained by the Visitor and Centre for Women's Studies is not a part of the University. Though in the appointment of 4th respondent, Statute 7(1) was referred to, but in the 6th sense, Statute 7(1) has no application and therefore incorrectly quoting a professor would not make the appointment of 4th respondent as contrary to the Statutes. The respondents, in order to afford opportunity to all the employees working in the Centre for Women's Studies, are appointing Head of the Centre/Head of the Department on rotation basis so that everyone would get an opportunity to work as Head of the Department. 9. The respondents, in order to afford opportunity to all the employees working in the Centre for Women's Studies, are appointing Head of the Centre/Head of the Department on rotation basis so that everyone would get an opportunity to work as Head of the Department. 9. Learned Standing Counsel has further contended that the claim made by the petitioner that she is a senior most Professor and she has contributed to the Centre for Women's Studies is all being denied in the counter affidavit. Learned Standing Counsel has further contended that as long as statutes are not amended in accordance with Section 25 of the Universities Act, the Centre for Women's Studies can never be made part of University. The Centre for Women's Studies is functioning as a stand alone centre with the financial assistance of University Grants Commission. Therefore, there are no merits in the Writ Petition and the same is liable to be dismissed. 10. Learned Standing Counsel has further contended that the Centre for Women's Studies is not forming part of University. Mere quoting the Statute 7(1) while appointing the 4th respondent would not nullify the orders granted in favour of the 4th respondent. Statute 7(1) was incorrectly referred in the appointment of the 4th respondent. When Centre for Women Studies is forming part of the respondent-University, the question of violating Statute 7(1) would not arise. 11. Learned counsel for 4th respondent relied upon Statute 17(5)(b) which makes it very clear that no Department/Centre shall be established or abolished except by these Statues; Provided that the Executive Council may, on the recommendation of the Academic Council, establish Centres of study to which may be assigned such teachers of the University as the Executive Council may consider necessary. He further contended that Proviso to Statute 17(5)(b) cannot dilute the main object of Statute 17(5)(b). Statute 17(5)(b) makes it clear that no Department/Centre shall be established or abolished except by these Statues. He further contended that Statute 38 deals with 'Ordinances Made'. He further contended that Proviso to Statute 17(5)(b) cannot dilute the main object of Statute 17(5)(b). Statute 17(5)(b) makes it clear that no Department/Centre shall be established or abolished except by these Statues. He further contended that Statute 38 deals with 'Ordinances Made'. Ordinance 38(6) makes it clear that every Ordinance made by the Executive Council shall be submitted to the Visitor within two weeks from the date of its adoption and that Visitor shall have the power to direct the University within four weeks of the receipt of the Ordinance to suspend the operation of any such Ordinance and he/she shall, as soon as possible inform the Executive Council about his/her objection to the proposed Ordinance. The Visitor may, after receiving the comment of University, either withdraw the order suspending the Ordinance or disallow the Ordinance, and his/her decision shall be final. 12. Learned counsel for 4th respondent has further contended that admittedly in the instant case, the Visitor's assent was not taken. The Centre for Women's Studies is working as a stand alone centre and the Centre for the Women's Studies is only a Centre which is not full-fledged Department or Centre of the University and therefore, the question of applying Statute 7(1) would not arise. On rotational basis, the respondent-University has rightly appointed 4th respondent as Head of the Centre/Head of the Department since she is being qualified. Hence, no illegality has been committed by the respondent-University in appointing the 4th respondent as Head of the Centre/Head of the department. Therefore, there are no merits in the Writ Petition and the same is liable to be dismissed. 13. In reply, learned counsel for the petitioner contended that the University has taken a different stand in W.P. No. 22457 of 2010 and the University had specifically contended that the Centre for Women's Studies and other Centres have been constituted as per the Rules after following the Act and the Statutes. Now the University cannot turn around and contend differently saying that the Centre for Women's Studies is not forming part of University and the Statutes were not amended. When the Executive Council has accepted the recommendations of the Academic Council in its 159th meeting held on 27-11-2013, the University cannot violate their own statute and appoint 4th respondent contrary to Statute 7(1) of the Universities Act, 1974. 14. When the Executive Council has accepted the recommendations of the Academic Council in its 159th meeting held on 27-11-2013, the University cannot violate their own statute and appoint 4th respondent contrary to Statute 7(1) of the Universities Act, 1974. 14. Learned counsel for the petitioner has further contended that the Academic Council has recommended in its 71st meeting held on 19-09-2013 to establish a Centre for Women's Studies as a statutory centre of the University and Executive Council having accepted the same, the University cannot take a contrary view and contend that Centre for Women's Studies is not a statutory centre. Thereafter, in an academic ordinance, it was incorporated as a Centre for Women's Studies and as full-fledged University Department. 15. Learned counsel for the petitioner has further contended that the respondent-University is maintaining a common seniority list of Professors from among regular Professors of University as well as Professors working in Centre for Women's Studies and in such seniority, the name of the petitioner is also one among the seniors working in the University. Therefore, the appointment of the 4th respondent as Head of the Centre is contrary to Statute 7(1) and the same is liable to be set aside. 16. Having regard to the rival submissions made by the parties, this Court is of the considered view that when the recommendations of the Academic Council vide 71st meeting held on 19 & 15-09-2013 were approved by the Executive Council in its 159th meeting held on 27-11-2013, the Centre for Women's Studies has become a full-fledged wing of the University and the respondents have specifically taken a stand in the counter and vacate stay petition filed by the respondent-University in W.P. No. 22457 of 2010 to the following effect; Para-3 of the counter affidavit reads as follows:- "With regard to the allegations contained in para-3 that Centers are not created as per the Rules and that the irregular transfer of the teaching positions has resulted in the change of the roster and that the shifting of teaching positions to the 'illegal' centers resulted in diversion of funds from regular departments to such of Centers not approved by Statutes affecting teaching and research activities, it is submitted that the said allegations are wholly vexatious, mischievous and misconceived and untrue. It is submitted that all the 120 position referred to by the petitioners are operated within the University which is a unitary University without any affiliating colleges and have not been transferred as alleged by the petitioner. The University has allotted these positions to various School/Departments/Centres within the University and this is within the powers vested with the university. The University, therefore, strongly refutes the allegation that the positions have been transferred and that the Centres are illegal. Under Section 5 of the Act, clause 12, read with clause 16, empowers the University to establish such campuses, Special Centres, Specialized laboratories or other units for research and instructions as are in the opinion of the University, necessary for the furtherance of its objects. Further under the provisions of Section 24 Clause (p) of the Act, the Statutes may provide for establishment & abolition of Schools, Departments/Centres. Section 26 Clause (j) also states that the Ordinances may provide for the establishment of Centres, Special Centres etc. The procedure indicated in the Statutes 17 Clause 5(b) states that the Executive Council may on the recommendation of Academic Council establish new Centres/Departments. The University is not amending the Ordinance, since the Ordinances as they stand already, provide for establishment of new Centres. To draw a comparison, in the University the admission of students every year is also a provision contained in the Ordinances and the University does not amend its Ordinances for its admissions made every year. In the earlier cases, the University had erroneously submitted each such proposal for amendment of Ordinance, which actually was not required as per the Acts, Statutes and Ordinances. Moreover, the powers of thee University are clearly stated in Section 5 of the Act and Section 18 of the Act clearly lists the authorities of the University and as per Statute 17 clause 5(b) the powers to establish centres or departments are vested in with the Executive Council. Except where specifically provided, there is no need to amend ordinances for such purposes as claimed incorrectly by the petitioners. As per statute 38(1), every Ordinance made by the Executive Council comes into effect immediately. At any rate, each of the minutes of the Executive Council in which these centres were approved have been sent to the Ministry. The minutes of the Executive Council also include the minutes of the Academic Council. As per statute 38(1), every Ordinance made by the Executive Council comes into effect immediately. At any rate, each of the minutes of the Executive Council in which these centres were approved have been sent to the Ministry. The minutes of the Executive Council also include the minutes of the Academic Council. They are forwarded to the Visitor through the Ministry of Human Resources Development, which is nodal ministry, and also to the University Grants Commission. They have not objected to the creation of these centres on receipt of the minutes. However, the University also sent a consolidated and updated list of Centres with details of Academic Council and Executive Council approval to the MHRD vide letter dated 14-02-2011 for updating the records." 17. A perusal of the counter affidavit in W.P. No. 22457 of 2020 clearly discloses that the respondents have included the Centre for Women's Studies as one of the wing of the University and the respondents have also enclosed academic ordinances dt. 09-11-2010 to the said counter affidavit wherein Centre for Women's Studies was added in the form of addition as one of the wing of the University and Section 26(1)(j) and (2) of the University of Hyderabad Act, 1974 which states as follows: "Section 26 Ordinances:-(1) Subject to the provisions of this Act and the Statutes, the Ordinances may provide for all or any of the following mattes, namely:- (a) to (i).. (j) the establishment of Centres of Studies, Boards of Studies, Special Centres, Specialised Laboratories and other Committees; (k) to (q) (2) The first Ordinance shall be made by the Vice-Chancellor with the previous approval of the Central Government and the ordinances so made may be amended, repealed or added to at any time by the Executive Council in the manner prescribed by the Statutes." 18. As per Section 26(1)(j) and (2), the University can establish Centre for Women's Studies and if the University intends to do anything under Section 26(2), then the question of following statute 38 would arise. Admittedly in the instant case, respondent-University has acted in accordance with Section 26(1)(j) and respondent-University has incorporated Centre for Women's Studies as an addition to its existing wing by invoking the powers under Statute 17(5)(a) and in view of the same, the contention of the respondents that it is not incorporated as per established Rules cannot be accepted. 19. Admittedly in the instant case, respondent-University has acted in accordance with Section 26(1)(j) and respondent-University has incorporated Centre for Women's Studies as an addition to its existing wing by invoking the powers under Statute 17(5)(a) and in view of the same, the contention of the respondents that it is not incorporated as per established Rules cannot be accepted. 19. This Court is not able to understand as to why the respondents are trying to violate the Executive Council's decision by appointing the 4th respondent as Head of the Department to the Centre except contending that Centre for Women's Studies is not a regular wing of the University, no other argument was advanced by the learned Standing Counsel nor learned counsel for the 4th respondent as to why 4th respondent who is only Associate Professor was preferred ignoring the claim of the petitioner who is in the cadre of Professor. When a senior Professor is available in the form of petitioner, this Court is not in a position to understand why a junior most Associate Professor whose probation is yet to be declared is appointed as a Head of the Department. 20. Statute 7 of the Act, 1974 reads as follows:- "7. Heads of Departments:- (1) Each Department shall have a Head who shall be a Professor and whose duties and functions and terms and conditions of appointment shall be prescribed by the ordinance: Provided that if there is one or more than one Professor in any Department, the Head of the Department shall be appointed in the manner prescribed by the Ordinances. Provided further that in a Department where there is no Professor, a Reader may be appointed as Head of the Department in the manner prescribed by the Ordinances. Provided also that if there is no Professor or Reader, in a Department, the Dean of the Faculty concerned shall act as the Head of that Department. (2) It shall be open to a Professor or Reader to decline the offer of appointment as the Head of the Department. (3) A person appointed as the Head of the department shall hold office as such for a period of three years and shall be eligible for reappointment. (4) A Head of a Department may resign his office at any time during his tenure of office. (3) A person appointed as the Head of the department shall hold office as such for a period of three years and shall be eligible for reappointment. (4) A Head of a Department may resign his office at any time during his tenure of office. (5) A Head of a Department shall perform such functions as may be prescribed by the Ordinances." Statute 7 clearly says a Professor should be appointed as Head of the Department and only when a Professor declines, then an Associate Professor can be appointed as Head of the Department. It was not there in the instant case. 21. When the stand of the University is made clear in the counter affidavit filed by the respondents in W.P. No. 22457 of 2010, the respondents cannot take a different stand in the present case only to defeat the case of the petitioner. Further, the University is maintaining combined seniority list of Professors, Associate Professors and Assistant Professors in the University and Centres of the University. If the argument of the respondents is to be accepted, then the University must maintain separate seniority list for the University Professors and Centre Professors. But that is not the case in the present case. The 4th respondent was appointed as a Head of the Department by invoking the powers under Statute 7(1). Therefore, this Court is of the considered view that the appointment of the 4th respondent is contrary to Statute 7(1) of the University of Hyderabad Act, 1974. 22. Therefore, for the above reasons, 4th respondent's appointment as Head of the Department vide proceedings dt. 30-06-2020 with effect from 01-07-2020 and its approval on 27-07-2020 by the 3rd respondent are liable to be set aside and accordingly the same are set aside and the respondents are directed to consider the case of the petitioner for appointment to the post of the Head of the Department. 23. Accordingly, the Writ Petition is allowed. No costs. 24. As a sequel, the miscellaneous petitions pending, if any, shall stand closed.