Allowed

Rekha Singh v. Union of India and 6 Others

Allahabad HC13 Apr 2018WRIA/31696/2016

Case brief

AI extract

What is this about?

The High Court held that withholding statutory assent for over six years without reasons amounts to a denial. It directed the Ministry to seek final approval from the Visitor and ordered the University to pay the petitioner's arrears of salary from November 2014 to 2017 to avoid violating Article 23 against Begar.

What did the court decide?

Directed the Ministry to place the matter before the Visitor for final opinion and ordered the University to pay the petitioner's arrears of salary and emoluments from November 2014 to 2017 within two

Rekha Singh Vs Union of India and 6 Others — Pension and Retirement Benefits | Allahabad HC (2018)

A.F.R.

Reserved

Case :- WRIT - A No. - 31696 of 2016

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Petitioner :- Rekha Singh Respondent :- Union Of India And 6 Others Counsel for Petitioner :- Yogesh Agarwal Counsel for Respondent :- A.S.G.I.,Arvind Kumar Goswami,Neeraj Tripathi,Rijwan Ali Akhtar,Ritvik Upadhya

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Hon'ble Pankaj Mithal,J. Hon'ble Saral Srivastava,J.

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The petitioner is an Assistant Director, Institute of Correspondence Course and Continuing Education, (hereinafter referred as ICC&CE) University of Allahabad. She has preferred this petition primarily seeking a direction commanding the University to pay arrears of salary to her from November, 2014 as the Assistant Director and to continue to pay the same on monthly basis. The other prayer made in the writ petition is for amending Statute 30(2) of the Statutes of the University in accordance with the resolution dated 25.01.2012 of the Executive Council of the University.

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The petitioner apart from the above reliefs has also made a prayer for declaring Sub-Section (3) of Section 28 of The University of Allahabad Act, 2005 as illegal but Sri Yogesh Agarwal learned counsel appearing for the petitioner at the commencement of the arguments had clearly stated that he does not want to press the aforesaid prayer as the petitioner is not inclined to challenge the validity of the aforesaid provision.

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In view of above, we are basically concerned with regard to the entitlement of the petitioner to salary as Assistant Director ICC&CE, University of Allahabad and with regard to the necessity to amend the Statute 30(2) of the Statutes of the University as per resolution dated 25.01.2012 of the Executive Council of the University.

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The University of Allahabad a premier educational institute of

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the country acknowledged to be the Oxford of the East was previously governed by the provisions of the U.P. State Universities Act, 1973 (hereinafter referred as the Act, 1973) and the First Statutes of the University of Allahabad, 1976. The said Act vide Section 44 had authorised the University to establish one or more Institutes to organise and conduct teaching and research in any subject.

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In exercise of the aforesaid power the University with the prior permission of the University Grants Commission in the year 1976 had established ICC&CE for imparting education through correspondence courses.

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The petitioner was appointed as an Assistant Correspondence Officer in ICC&CE in the year 1984. She was promoted to the post of Assistant Director of the ICC&CE on 01.03.1997 and continued to receive salary on monthly basis eversince her appointment.

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The then ordinances of the University in regard to the ICC&CE provided that it shall organise instructions for such courses of study leading to degrees, diplomas, certificates of proficiency or special certificates as may be appropriately be offered in the open for distance learning and that the ICC&CE shall have a Director, who shall be the executive functionary of the Institute to exercise general supervision and control over its affairs and to perform such functions as may be assigned by the Competent Authorities or the Advisory Board.

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The University of Allahabad was declared to be a Central University with the enactment of The University of Allahabad Act, 2005 (hereinafter referred to as the Act) which received the assent of the President of the India on 23rd June, 2005 duly published in the gazette of India.

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Section 3 of the said Act declared the University of Allahabad as an Institution of National Importance.

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Section 22 of the aforesaid Act recognises the Executive

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Council to be the principal executive body of the University whereas Section 14 (2) of Act recognises the Vice Chancellor to be the Principal Executive and the Academic Officer of the University.

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Section 5(d) of the Act provide that every person employed by the University of Allahabad immediately before the appointed day shall hold his office or service in the University by the same tenure at the same remuneration and upon the same terms and conditions and with the same rights and privileges as he would have held if the Act had not been passed and continue to hold the same until and unless his employment is terminated or the terms and conditions are duly altered by the Statutes.

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In other words, the petitioner who was working as Assistant Director in the ICC&CE by virtue of Section 5 (d) of the Act continued to function as such on the same terms and conditions as her services were neither terminated nor the terms and conditions of her employment were altered by the Statutes.

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Nonetheless the salary and emoluments payable to the petitioner were stopped from November, 2014.

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According to Section 28 of the Act the First Statutes of the University are those that are set out in the schedule of the Act. Statute 30 of the said Statutes provides for the University Institutes, independent Centres, University Colleges and Constituent Institutes.

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The ICC&CE has been referred to in the Statutes as on institute which shall continue as a temporary self financing Institute of the University. It is in view of the aforesaid temporary self financing status accorded to the ICC&CE under Statute 30 of the Statutes that it became necessary for the Executive Council to pass a resolution to change the status of the Institute and to seek amendment in the Statutes so as to make it permanent and aided.

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The Executive Council of the University in its 12^th meeting held on 25.01.2012 on the basis of the report of the Advisory Board decided to change the status of the Institute from temporary self

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financing to that of constituent unit of the University as its integral part and thus resolved to amend the First Statutes of the University.

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It is in the above background that the petitioner not only claimed her salary and emoluments from November, 2014 as Assistant Director of the ICC&CE but has also asked for the amending the Statute 30(2) of the First Statutes of the University of Allahabad in accordance with the resolution dated 25.01.2012.

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The facts as narrated above clearly demonstrate that the ICC&CE is a Temporary Self-Financing Institute of the University of Allahabad which is continuing since its establishment in 1976 and that the petitioner is continuously working therein earlier as Assistant Correspondence Officer and then as Additional Director and that she has not been paid salary and other emoluments from November, 2014 onward.

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The Statutes have not been amended despite the resolution of the Executive Council as Sub-Section (3) of Section 28 of the Act provides that every new Statute or addition to the Statutes or any amendment or repeal thereto shall require the assent of the Visitor which has not been accorded so far.

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On an earlier writ petition filed by the petitioner which was disposed of by the Division Bench of this Court vide order dated 05.08.2015 it was noted that the proposal for the amendment of the Statutes as resolved by the Executive Council of the University was forwarded vide letter dated 06.03.2012 to the Joint Secretary, Government of India for being placed for the approval of the Visitor of the University/Hon'ble The President of India. Since more than three years have elapsed the Court required the authority concerned i.e. Secretary, Union of India, Ministry of Human Resource Development, Department of Higher Education, Shastri Bhawan, New Delhi to place the matter before the Visitor and to request him to take decision in the matter at the earliest.

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It appears that subsequently on the matter being so placed

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before the Visitor, the Deputy Secretary to the Government of India, Ministry of Human Resource Development, Department of Higher Education, Shastri Bhawan, New Delhi informed the Registrar of the University vide letter dated 19.04.2016 that the President of India in his capacity as the Visitor of the University has been pleased to withhold assent to the amendment of the Statues relating to ICC&CE as per the resolution dated 25.01.2012 of the Executive Council of the University of Allahabad.

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On the query of the Court as to the duration for which the approval can be withheld by the Visitor, the Deputy Secretary to the Government of India, Ministry of Human Resource Development, Department of Higher Education, Shastri Bhawan, New Delhi vide letter dated 17.11.2017 has informed that the current status in regard to the above is that the proposal to amend the Statutes as per the aforesaid resolution of the Executive Council of the University is still withheld.

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The instructions of the Deputy Secretary dated 08.01.2018 further reveals that as ICC&CE is a self-financing Institute, it is not possible for the Visitor to agree to the proposal of the University for changing its status merely to take over the liability of the staff of the ICC&CE, a self-financing Institute. However, no order of visitor in this regard was placed before the Court.

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We have heard Sri Yogesh Agarwal, learned counsel for the petitioner, Sri Arvind Kumar Goswami, learned counsel for the respondents No. 1 and 7, Sri Neeraj Tripathi, learned counsel for the respondents No. 2 to 5 and Sri Ritvik Upadhya, learned counsel for the respondent No.6.

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Sri Yogesh Agarwal has argued that the ICC&CE is an integral part of the University of Allahabad and as the petitioner is regularly working, she is entitle to her salary and emoluments as she was receiving in the past. The Visitor cannot withhold the approval to the proposed amendment of the Statutes for an indefinite period. Any

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such withholding of assent would amount to disapproval which cannot be done without recording reasons and for want of jurisdiction.

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Sri Goswami, who represent the main contesting parties, submits that under Section 28(3) of the Act the Visitor has the power to assent, withhold or to remit the matter of amendment of the Statutes and therefore, the discretion to withhold assent so exercised by him is well within his jurisdiction. It is not mandatory for the Visitor to give assent to every proposed amendment. The petitioner is working in a self-financing Institute and as such cannot claim salary from the Government.

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Before adverting to the question of payment of salary to the petitioner, we would first like to deal with the proposed amendment to the First Statues of the University.

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The Schedule to the Act provides for the First Statutes of the University.

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Statute 30 of the First Statutes of the University reads as under: “30. University Institutes, independent Centres, University Colleges and Constituent Institutes .-(1) The Institutes of the University immediately before the commencement of the Act, namely:-

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(i) The Institute of Inter-Disciplinary Studies;

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(ii) The Institute of Professional Studies; and

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(iii) The National Centre of Experimental Mineralogy and Petrology shall continue as University Institutes and the Centre of Behavioural and Cognitive Sciences shall continue as an independent Centre of the University, and all matters relating thereto shall be provided for by the Ordinances.

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(2) The Institute of Correspondence Courses and Continuing Education shall continue as a temporary self-financing University Institute, and all matters

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relating thereto shall be provided for by the Ordinances.

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(3) The manner of establishing University Institutes, Centres and University Colleges maintained by the University and other matters relating to them shall be prescribed by the Ordinances.

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(4) The following shall be the University Colleges, namely:-

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The Motilal Nehru Medical College and Swarup Rani Nehru Hospital, Allahabad.

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(5) The following shall be the Constituent Institutes, namely:-

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(i) The Govind Ballabh Pant Social Science Institute, Allahabad;

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(ii) The Harish Chandra Research Institute of Mathematics and Mathematical Physics, Allahabad; and

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(iii) The Kamala Nehru Postgraduate Medical Institute, Allahabad.

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(6) The admission of institutions to the privileges of the University as Constituent Institutes and University Colleges and other matters relating to Constituent Institutes and University Colleges shall be prescribed by the Ordinances.”

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According to Section 3(y) of the Act means an Institute established and maintained by the University. Therefore, ICC&CE which was established and maintained by the University, continued to be an integral part of the University of Allahabad irrespective of the fact it was a self-financing institute required to meet its expenses out of the funds generated by it.

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Sub-Clasue (2) of Clause 30 recognises ICC&CE as a self-

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financing Institute nonetheless it is an institute of the university which is established and maintained by the University.

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It has been well recognised and settled that right to education is a fundamental right under Part III of the Constitution of India. It is a pious obligation of the State and the Society to provide education at all levels to all citizens and the State may discharge this obligation either through State owned or State recognised educational institutions and may get the aforesaid activity supplemented by the private institutions as well.

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It is an undisputed fact that ICC&CE was started by the University in 1976 as a self-financing Institution to cater the needs of the students who were not able to get admission in the regular under graduate courses of the University. Thus, the object of the ICC&CE was to supplement the State activity of providing education to the maximum numbers of the citizens as the seats of under graduate courses in the University were limited.

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In this way the ICC&CE is aiding the University in fulfilling its obligation of imparting education as per the constitutional mandate.

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It is probably in view of the above nature of function discharged by the ICC&CE that the Executive Council on the basis of the report of the Advisory Board considered it appropriate to confer the permanent status to it and to make it an integral part of the University by amending the statutes. However, the assent to the aforesaid proposal has been withheld by the Visitor.

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Notwithstanding the fact that no order of the Visitor with any reason for withholding has been placed on record yet we find that it is probably for the reason that the University intends to shift the liability of the staff of the ICC&CE upon the Government that the assent to it has been withheld.

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Section 28(3) of the Act, 2005 reads as under:-

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“Every new Statute or addition to the Statutes or any amendment or repeal of a Statute shall require the assent of the Visitor who may assent thereto or withhold assent or remit to the Executive Council for reconsideration.”

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The aforesaid provision in unequivocal terms provide that amendment of the Statutes require the assent of the Visitor and that he may either give or withhold his assent or remit the matter to the Executive Council for reconsideration.

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Thus, only three options have been provided to the Visitor namely;

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i) to give assent to the proposed amendment;

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ii) to withhold his assent; and

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iii) to remit the matter to the Executive Council for reconsideration.

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The Visitor therefore, has not been conferred with any jurisdiction or authority to deny or refuse assent to any proposal received for the amendment of the Statutes.

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In the case at hand, the Visitor has not deemed it appropriate to grant assent to the proposed amendment or to remit the matter to the Executive Council for reconsideration. He has simply withheld the same.

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It is tirite to mention that withholding of assent is altogether different from refusing or denying assent. In the case of refusal or denial there is a conscious decision one way whereas in the event of withholding the assent, it appears that the authority concerned is uncertain or is in a double mind and is unable to take decision one way or the other. The withholding of the assent falls little short of refusing or denying the assent and as such cannot be equated with the denial of assent.

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According to P Ramanatha Aiyar Concise Law Dictionary Third Edition 'withhold' cannotes failing to do what was bound to be done and what was within the power and control of being done. More specifically it means to keep away or to keep back or to refrain from

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granting or giving something which is within the power and control. In-contrast to it 'refusal' connotes a positive act of denial. It expresses a determination not to do something.

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The Rule of literal construction envisages that the words of a Statute are to be understood in the very first instance in their natural, ordinary or popular sense unless leads to some absurdity or unless there is something in the context or in the object of the Statute to suggest the contrary.

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In other words natural and ordinary meaning of the words used in the Statute should not be departed from unless the legal context in which they are used requires a different meaning to be assigned to them.

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In view of the above, golden rule of interpretation, a clear distinction can be made between withholding the assent and in refusing to grant assent and both the things cannot be equated with one another.

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Now comes the question as to the period the matter of grant of assent can be kept pending or withheld by the Visitor. Certainly neither the Act nor the Statutes provides for any time limit for the disposal of such matter by the Visitor or for giving or withholding the assent.

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Nonetheless every State action has to be exercised in a fair and in a reasonable time without causing any prejudice or injustice to anyone. It is therefore, always expected that some moratorium be put on the time for action in such matter. What would be a reasonable time? It all depends on the facts and circumstances of the case.

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There is no dispute to the fact that the resolution of the Council proposing to amend the Statute 30(2) of the Statutes was passed on 25.01.2012 and was forwarded through proper channel to be placed before the Visitor on 06.03.2012 and as such the matter is now pending before him for over six years.

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Now, keeping the matter pending or withholding the assent for a period of over six years by no stretch of imagination can be

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considered to be fair and reasonable that too when the Court had already made a request earlier to place the matter before the Visitor and to request him to take a decision at the earliest.

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In such a situation, one can legitimately presume that the Visitor has virtually denied assent to the proposed amendment or that he does not want to give assent and withholding it is a colourable exercise of power.

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Moreover, the denial has to be very specific for reasons to be recorded. There is nothing on record to suggest that any specific speaking order of denial to grant assent was passed by the Visitor. The withholding of the assent in such circumstances, in the absence of any reasons on record cannot be held to be legitimate.

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This brings us to the issue of payment of salary and emoluments to the petitioner.

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Irrespective of the status of the ICC&CE whether it is a temporary self-financing Institute or an Institute of a permanent nature forming an integral part of the University, the admitted position is that the petitioner had continuously worked as Assistant Director of the Institute w.e.f. 01.03.1997 till her retirement in 2017.

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Therefore, the petitioner legitimately expects to be adequately compensated for the work she has done.

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Article 23 of the Constitution of India prohibits 'Begar'. It reads as under:-

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“23. Prohibition of traffic in human beings and forced labour.

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(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

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(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.”

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The aforesaid Article envisages to solve three unsocial practices prevailing in the India society namely;

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i) Traffic in human beings;

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ii) Begar; and

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iii) similar forms of forced labour

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In the present context, we are concerned with one of the evils of 'Begar.'

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The word 'Begar' is of Indian origin and has been adopted in the English vocabulary. It is understood to be a labour or service which a person is forced to give without receiving any remuneration for it.

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In other words extracting labour or service from a person by the government or by person in power without giving remuneration for it amounts to 'Begar.' 'Begar' can take different forms such as forced labour, taking work without remuneration or taking work without paying adequate remuneration or remuneration less than the minimum wages.

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In view of the above Constitutional mandate no Government or public body or a person can take work from anyone without paying remuneration or less remuneration then admissible or by force as it would be a clear violation not only of the fundamental right of a person but of a much superior human right which inheres in every individual.

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In People's Union for Democratic Rights and others Vs. Union of India and others AIR 1982 SC 1473 it has been observed that Article 23 of the Constitution of India protects individual not only against State but against private citizens and that Begar means labour or servive which a person is forced to give without receiving any remuneration or which is less than minimum wages. It amounts to violation of fundamental enshrined under Articles 17, 23 and 24 of the Constitution. It has further been laid down that it is the Constitutional obligation of the State to take necessary steps to stop such violation and ensuring observation of the fundamental right by

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private individuals who are transgressing the same.

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The aforesaid decision has been followed in State of Gujarat and another Vs. Hon'ble High Court of Gujarat (1998) 7 SCC 392 and where in context with the convicts it was held that all prisoners doing labour are entitle to equitable wages.

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In view of the aforesaid facts and circumstances, we are of the opinion that in exercise of powers under Section 28(3) of the Act, 2005 the Visitor has no authority of law to deny or refuse grant of assent to the proposed amendment to the Statues as resolved by the Executive Council and that the power of withholding the assent is not unfettered so as to permit him to keep it pending or withheld for years together as withholding of the assent is permissible only for a limited period which may be fair and reasonable in the given facts and circumstances of the case.

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Accordingly, the Ministry of Human Resource Development, Department of Higher Education, Shastri Bhawan, New Delhi is directed to place the matter once again before the Visitor and to have his final opinion for the grant of assent or for remittance of the matter to the Executive Council of the University for reconsideration, if necessary.

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Since the ICC&CE is a Self-Financing Institute of the university, we do not certainly like to burden the public exchequer or the Government with the liability to pay salary and the emoluments admissible to the petitioner as Assistant Director of the ICC&CE but are of the clear opinion that as the petitioner had continuously worked there from November, 2014 till her retirement in 2017, there is no justification not to pay her salary/remuneration admissible to her otherwise it would amount to Begar which is not only prohibited under Article 23 of the Constitution of India but is also punishable.

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Accordingly, we direct the University to make immediate arrangement for payment of salary and emoluments to the petitioner for the period November, 2014 till 2017 and to make the entire payment within a period of two months of the receipt of the copy of

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this order failing which criminal action for punishing the erring officers shall be taken in accordance with law.

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The Writ Petition is allowed as above.

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Order Date :- 13.04.2018 piyush

Rekha Singh v. Union of India and 6 Others

Case brief

What is this about?

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Rekha Singh v. Union of India and 6 Others

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