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2024 DIGILAW 486 (ALL)

Rama Kant v. State of U. P.

2024-02-15

AJIT KUMAR

body2024
JUDGMENT : 1. Heard Sri D.K. Srivastava, learned counsel for the petitioners, Sri Ashish Mohan Srivastava, learned counsel for the Committee of Management of the college concerned and Sri Rohit Pandey, learned counsel for the University. 2. Petitioners before this Court were initially engaged in a self-financed course as a Lecturer in the subject of Sociology with the approval of the Vice Chancellor vide orders dated 22.10.2003 and 19.09.2007 respectively and continued as such until the order impugned came to be passed on 24.07.2018 putting their appointment in the self finance course of the college, in abeyance. 3. The argument advanced by learned counsel for the petitioner is that the Committee of Management of the college concerned was not legally authorized to pass such kind of orders without seeking prior approval from the Vice Chancellor as is indicated under Section 35(2) of the U.P. State Universities Act, 1973 (hereinafter referred to as 'the Act of 1973'). The provisions require every appointment, according to him, and the termination of appointment as well, to be subject to the prior approval by the Vice Chancellor. He has also taken the Court to the Government Order dated 09.05.2000 to advance a submission that in the event a Committee of Management was having any complaint against the petitioners regarding their work and conduct or otherwise then such order would amount to be punitive in nature and, therefore, was also to have preceded by the approval of the Vice Chancellor. 4. Per contra, it is argued by learned counsel for the Committee of Management, Sri Ashish Mohan Srivastava, that though the self finance course in question is being run by the institution but because of the number of students getting down/reduced there remained no further requirement of having two faculty members in addition to those who were already employed in the institution and so the order putting in abeyance appointment of petitioners have been passed on the principle of last come first go. He submits that in 2019 around only nine students were enrolled in the subject of Sociology and the first semester and second semester there were only 10 students and likewise in the subject of Geography there were only 24 and 25 students respectively and since a class consists of atleast 40 students, therefore, the management cannot be faulted with in putting the continuance of the petitioner's services on hold. 5. 5. It is further argued that since the Committee of Management did not proceed to dispense with the services of the petitioner, therefore, there arose no question for seeking any prior approval from the Vice Chancellor. He submits that it would have been necessary had the Management proceeded to terminated their services. Another argument advanced by Sri Srivastava is that there were serious complaints against the petitioners regarding their act and conduct in the institution against the management inasmuch as there were other serious complaints from the students against them and therefore, the management got compelled to put in abeyance their continuance in college as teachers. 6. Sri Rohit Pandey, learned Advocate appearing for the University submits that as per the Act of 1973 which is applicable to the institution in question, the services of such teachers cannot be dispensed with without prior approval of the Vice Chancellor as their appointments are also done with the prior approval of the Vice Chancellor. He further submits that since there was no proceeding drawn by the Committee of Management against the petitioners, nor there is any justification shown in the order that services of the petitioners were discontinued only for the reason that there were serious complaints, there was all the more no reason to order petitioners to sit back. It is further submitted that on the University portal that contains a dash board with details of faculty in the college does show the name of these two teachers on the roll of the faculty of the college even today. He has also placed before the Court the current status of the strength of students in the subject of Sociology and Geography and according to which he submits that there are sufficient number of students for which the petitioners can be gainfully engaged. 7. He has also placed before the Court the current status of the strength of students in the subject of Sociology and Geography and according to which he submits that there are sufficient number of students for which the petitioners can be gainfully engaged. 7. Having heard learned counsel for the respective parties, their arguments raised across the bar and having perused the pleadings raised in the writ petition, order of appointment and orders putting their appointments in abeyance, Government Order dated 09.05.2000 as well as relevant statute of the University, two points emerge out for consideration : (a) Whether the Committee of Management was justified and legally entitled to put in abeyance the appointment of the petitioners which was offered to them after prior approval of the Vice Chancellor, and (b) Whether such power to put on hold on appointment duly made, is vested with the college and that too without prior approval of the Vice Chancellor of the University. 8. It is nobody's case that the institution in question is not affiliated with the University in question, namely, Chhatrapati Sahu Ji Maharaj University, Kalyanpur, Kanpur which is governed under the Act of 1973. It is also nobody's case that the first statute of the University do not provide for any prior approval of the Vice Chancellor in the matter of appointment or termination of services of the teachers of the affiliated/associated colleges. The petitioners' institution being admittedly affiliated to the University in question also stands governed by the Statute. The relevant statute 35.1 and 35.2 of the Act of 1973 are reproduced hereunder : "35. Conditions of service of teachers of affiliated or associated colleges other than those maintained by Government or local authority. - (1) Every teacher in an affiliated or associated college (other than a college maintained exclusively by the State Government) 2[* * *] shall be appointed under a written contract which shall contain such terms and conditions as may be prescribed. The contract shall be lodged with the University and a copy thereof shall be given to the teacher concerned, and another copy thereof shall be retained by the college concerned. The contract shall be lodged with the University and a copy thereof shall be given to the teacher concerned, and another copy thereof shall be retained by the college concerned. (2) Every decision of the Management of such college to dismiss or remove a teacher or to reduce him in rank or to punish him in any other manner shall before it is communicated to him, be reported to the Vice-Chancellor and shall not take effect unless it has been approved by the Vice-Chancellor: Provided that in the case of colleges established and administered by a minority referred to in clause (1) of Article 30 of the Constitution of India, the decision of the Management dismissing removing or reducing in rank or punishing in any other manner any teacher shall not require the approval of the Vice-Chancellor, but, shall be reported to him and unless he is satisfied that the procedure prescribed in this behalf I has been followed, the decision shall not be given effect to." (Emphasis added) 9. From bare reading of Sub Section 2 of Section 35 of the Act of 1973 it is quite explicit that only order of dismissal or removal of a teacher or to reduction in rank or to punish him in any other manner shall have to be reported first to the Vice Chancellor and shall not be given effect to unless and until it is approved by the Vice Chancellor. The provisions do not make any distinction between aided/State financed course and self financed course. 10. The terms and conditions upon which a teacher has to be appointed are not only governed under the Act of 1973 but also have to be as per procedure as may be prescribed. The first Statute of the University concerned has come to be framed taking aid of Section 49 of the Act of 1973 and it prescribes vide Statute 17.06 that any resolution contemplating removal, dismissal or termination of services of a teacher shall in the first instance be placed before the Vice Chancellor for his approval and shall not be operative unless so approved. This Statute 17.06 (3) is pari materia to the provisions as contained under Section 35(2) of the Act of 1973. This Statute 17.06 (3) is pari materia to the provisions as contained under Section 35(2) of the Act of 1973. Further I find that Clause 4 of Statute 17.06 also provides that no resolution of the Management qua reduction of pay, stoppage of any annual increments for a specified period or deprivation of his pay not including subsistence allowance etc. shall be given effect to without prior approval of the Vice Chancellor. Statute 17.06 is reproduced hereunder : "17.06. (1) No order dismissing, removing, or terminating the services of a teacher on any ground mentioned in clause (1) or clause (2) of Statute 16.04 (except in the case of a conviction for an offence involving moral turpitude or of abolition of post) shall be passed unless a charge has been framed against the teacher and communicated to him with a statement of the grounds on which it is proposed to take action and he has been given adequate opportunity – (i) of submitting a written statement of his defense; (ii) of being heard in person, if he so desires; and (iii) of calling and examining such witnesses in his defense as he may desire; Provided that the Management or the officer authorised by it to conduct the inquiry may, for sufficient reasons to be recorded in writing, refuse to call any witness. (2) The Management may, at the time, ordinarily within two months from the date of the inquiry officer's report, pass a resolution dismissing or removing the teacher concerned from service, or terminating his service mentioning the grounds of such dismissal, removal or termination. (3) The resolution shall forthwith be communicated to the teacher concerned and also be reported to the Vice Chancellor for approval and shall not be operative unless so approved by the Vice-Chancellor. (4) The Management may instead of dismissing, removing, or terminating services of the teacher pass a resolution inflicting one or more of the following lesser punishments, namely-- i. reduction of pay for a specified period; ii. stoppage of annual increments for a specified period not exceeding three years; iii. deprivation of his pay not including subsistence allowance during the period of his suspension, if any. the resolution by the Management inflicting such punishment shall be reported to the Vice Chancellor and shall be operative only when and to the extent, approved by the Vice Chancellor." (Emphasis added) 11. deprivation of his pay not including subsistence allowance during the period of his suspension, if any. the resolution by the Management inflicting such punishment shall be reported to the Vice Chancellor and shall be operative only when and to the extent, approved by the Vice Chancellor." (Emphasis added) 11. It is thus absolutely clear that the power of the Management is conditioned by the prior approval of the Vice Chancellor. It is a prerequisite and without that the college/Committee of Management of the Institution is not at all entitled in any manner to pass any resolution and give it effect which may have adverse civil consequences and which may include both major action of removal/dismissal/termination of service or in any manner reduction of pay or withholding payment of salary. 12. Here an argument could be that in view of the provisions as contained under statute 17.04(4) a teacher appointed in temporary or officiating capacity can be removed from the employment by giving one month's notice or payment of one month's salary in lieu there of in advance. This provision also authorizes such a teacher to resign from the employment in a similar fashion. Provisions as contained under statute 17. 04(4) are reproduced hereunder : "(4) In the case of any other teacher appointed in a temporary or officiating capacity his services shall be terminated, by one month notice or on payment of salary in lieu thereof on either side." 13. Statute 17.06 bars termination of service of a teacher on any ground mentioned in clause (1) or clause (2) of statute 17. 04 except with prior approval of the Vice Chancellor in view of Clause (3) of statute 17.06. The petitioners having been appointed on a contract basis in a self finance course can claim to be falling in such category of teachers as mentioned in clause (4) of statute 17.04 (supra). The statute if taken to be totally silent qua the appointment of teachers in self finance course and their conditions of service. It is the Government Order issued by the State Government in that behalf on 09.05.2000 shall then have to be applied. The statute if taken to be totally silent qua the appointment of teachers in self finance course and their conditions of service. It is the Government Order issued by the State Government in that behalf on 09.05.2000 shall then have to be applied. Para 2(1) of the Government Order provides that appointments of teachers under self finance course have to be made from the panel prepared by the University Executive Council and the Vice Chancellor and para 2(2) says that upon contract, an appointment coming to end, fresh process for appointment shall be undertaken but prior to that, candidature of already working teachers have to be accorded due consideration. Such a teacher vested with the power to resign by giving three months' notice in advance and the Management is equally empowered to draw disciplinary proceedings against teachers, if it is not satisfied with the work and conduct of such teachers, but then prior approval of such final action by the management has to be obtained from the Vice Chancellor. 14. Para 2(1) and 2(2) of the Government Order dated 09.05.2000 are reproduced hereunder : 15. There is no other provision under the Government Order that may empower to Committee of Management to place appointment of a teacher in a suspended animation. Thus, even in case of temporary teachers and teachers appointed on contract basis, the power of Management are not absolute. 16. Now applying the above law to the order impugned, I find that the petitioner's services have been put in abeyance on 24.07.2018 in following terms : ^^çkid] MkWå jekdkUr çoDrk& Hkwxksy foå xzkå egkå fnfc;kiqj fo"k;% lsok LFkfxr ds laca/k esaA egksn;] ,rnFkZ lwfpr fd;k tkrk gS fd vkids fo"k; esa l= 2018&19 esa Nk=ksa dk vHkko gksus ds dkj.k vkidh lsok;sa vxys vkns'k rd LFkfxr dh tkrh gSA Hkonh; ¼jke'kadj xqIr½ ea=h@çcU/kd** 17. In respect of petitioner no.2 an identical order has been passed as quoted above. This order clearly states that the services of the teacher concerned is being put in abeyance. This order even does not refer to any resolution of the Committee of Management, nor does it show that any kind of communication preceded with the University. Now looking to the Clause 4 of the Statute 17.06 of first statute this order is clearly unsustainable because it puts the payment of salary of the petitioner also on hold. This order even does not refer to any resolution of the Committee of Management, nor does it show that any kind of communication preceded with the University. Now looking to the Clause 4 of the Statute 17.06 of first statute this order is clearly unsustainable because it puts the payment of salary of the petitioner also on hold. Naturally, if a teacher is not continued in employment may be is kept in suspended animation, he/she will equally be not entitled for the payment of salary on the principle of ' NO WORK NO PAY'. Thus order dated 24.07.2018 passed in respect of the petitioners brought on record as Annexure-1 to the writ petition is clearly unsustainable and deserves quashment. 18. Coming to the second question as to whether the Committee of Management could have put an appointment in abeyance like the case in question, I find that only provision that empowers the Committee of Management to take such decision is contained under Statute 17.06 as far as statute is concerned. The various clauses of the said statute only deal with the management's power to put a teacher under termination, dismissal or removal or even can subject him to an order which may amount to any kind of stoppage of annual increment allowances or salary, but the first statute 17.06 vide its clause 3 puts a rider upon this exercise of power of Management which according to the Statute requires prior approval of the Vice Chancellor. This provision being pari materia as I have already observed, to Sub Section 2 of Section 35, therefore, the Manager's power is also held to be not absolute one. There is no other power vested with the Committee of the Management under the Statute of the University or of the Act of 1973 by which a teacher duly appointed with the prior approval of the Vice Chancellor can be placed in suspended animation except where management intends to hold disciplinary proceedings vide statute 17.04. Therefore, in my considered view the Committee of Management was not justified in putting the appointment of the petitioners in abeyance. Even the Government Order (supra) that deals with the conditions of service of teachers in self-finance course, does not authorize management to place working of teacher in a suspended animation and then not to pay salary to such teachers. Therefore, in my considered view the Committee of Management was not justified in putting the appointment of the petitioners in abeyance. Even the Government Order (supra) that deals with the conditions of service of teachers in self-finance course, does not authorize management to place working of teacher in a suspended animation and then not to pay salary to such teachers. This exercise of power is held to be absolutely without any authority vested in law and hence null and void. 19. Now coming to another argument advanced by learned counsel appearing for the Committee of Management that the number of students have got reduced and, therefore, it became necessary to put the appointment of the petitioners on hold, suffice it to observe that even in such matters where the number of students had gone down and that the college did not require any more services of such teachers, the matter was required to be communicated to the University in the first instance to seek approval of the Vice Chancellor but in any case putting in abeyance the appointment of any teacher is not contemplated either under Section 35 of the Act of 1973 or the first Statute of the University. 20. Besides the above, considering the current status of the strength of the students which are more than 60 taking both the semesters together in both the subjects and the fact that the college is continuing with the courses, there is no justification to keep the petitioner's appointment in abeyance. 21. So far as the argument of learned counsel appearing for the Committee of Management, Sri Ashish Mohan Srivastava, as to the complaints by the student are concerned, the Government Order dated 09.05.2000 empowers the Committee of Management for this purpose to hold an enquiry and then take appropriate action. While pleadings have been raised in the counter affidavit regarding complaints but the pleadings are absolutely silent about any enquiry being held in the matter as contemplated under the Government Order and even if such an enquiry was held the enquiry report was liable to be communicated to the petitioner and then to the University in compliance of the principles of natural justice. On this count also, I do not find the orders passed to be sustainable. 22. In view of the above, the writ petition succeeds and is allowed. 23. On this count also, I do not find the orders passed to be sustainable. 22. In view of the above, the writ petition succeeds and is allowed. 23. The order passed by the Committee of Management dated 24.07.2018 putting the appointments of respective petitioners in abeyance by two separate orders are hereby quashed. 24. Consequences to follow.