Remanded

Rajnish Kumar Pandey v. Union of India and 4 Others

Allahabad HC28 Nov 2022WRIA/3177/2020

Case brief

AI extract

What is this about?

Writ petition challenging the Registrar's order annulling the petitioner's faculty status. The Court held the Registrar lacked jurisdiction to review the Executive Council's decision and found procedural flaws in the regularization process under the Central Act statutes.

What did the court decide?

Impugned order set aside; matter remanded to Executive Council to verify post vacancy and complete regularization within two months.

Rajnish Kumar Pandey Vs Union of India and… — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 36

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Case :- WRIT - A No. - 3177 of 2020

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Petitioner :- Rajnish Kumar Pandey Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Santosh Kumar Pandey,Shrawan Kumar Tripathi Counsel for Respondent :- A.S.G.I.,Kshitij Shailendra,Prabhat Tripathi,Sankalp Narain

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Hon'ble Saumitra Dayal Singh,J.

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Heard Shri Anoop Trivedi, Senior Advocate, assisted by Shri Santosh Kumar Pandey, learned counsel for the petitioner; Shri Kshitij Shailendra, learned counsel for the University and, learned Standing Counsel.

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Present petition has been filed to assail the order passed by the Registrar of the University of Allahabad, a Central University (hereinafter referred to as the University), dated 14.02.2020. By that order, the said authority of the University has practically annulled the earlier status of regular teaching faculty/Assistant Teacher vested on the petitioner by virtue of the recommendation of the Selection Committee dated 17.12.2018 as approved by the Executive Council of the University dated 05.04.2019.

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Consequently, the petitioner's status as a regular teaching faculty has been taken away. Further, recoveries have been directed against the petitioner. Upon the present petition being filed vide order dated 28.02.2020, the operation and effect of the impugned order insofar as it provided for recoveries, was stayed. However, it was provided, the respondent may not interfere in the working of the petitioner.

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Briefly, learned senior counsel for the petitioner has first submitted, the Registrar of the University has no jurisdiction or authority to review the order/Resolution of the Executive Council or recommendation of the Selection Committee. The order is claimed to be outside the scope of the jurisdiction

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conferred in that authority under Ordinance 84 of the Ordinance of the University.

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Second, it has been submitted, the impugned order was preceded by a show cause notice dated 21.03.2000, requiring the petitioner to show cause by producing the relevant documents regarding his appointment as part time Assistant Professor/Lecturer, with effect from 19.1.1992. The petitioner submitted a detailed reply to that notice. In that, the petitioner clearly relied on the recommendation of the Selection Committee dated 17.12.2018, and its approval by the Executive Committee dated 05.04.2019.

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Third, it has been submitted, the Selection Committee had recommended regularization of the petitioner in terms of Section 31(3)(c) of the Uttar Pradesh State Universities Act, 1973 (hereinafter referred to as the State Act). It reads as below:

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"31. Appointment of teachers.-.......

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3(a).......

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(c) Any teacher of the University who was appointed as lecturer/part No time lecturer on or before December 31, 1997 without reference to the Selection Committee by way of a short term or part time arrangement in accordance with the provisions for the time being in force for such of appointment, may be given substantive appointment by the Executive Council, if any substantive vacancy of the same cadre and grade in the same department is available if such teacher-

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(i) is serving as such on December 31, 1997 continuously since such initial appointment by way of short term/part time arrangement;

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(ii) possessed the qualifications required for regular appointment to the post under the provisions of the relevant Statutes in force on the date of the substantive appointment;

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(iii) has been found suitable for regular appointment by the Executive Council.

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A teacher appointed by way of short term/part time arrangement as aforesaid who does not get a substantive appointment under this clause

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shall cease to hold such post on such date as the Executive Council may specify."

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Keeping in mind the cut off date 31.12.1997 and the further fact that the petitioner was engaged on temporary basis on 19.1.1992, it has been submitted, the petitioner's engagement fell within the cut-off date prescribed under Section 31(3)(c) of the State Act. Therefore, a right had vested on the petitioner (upon enforcement of Section 31(3)(c) of the State Act), to be regularized.

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That regularization was also recommended at the relevant time i.e. on 19.12.2004. Though the University of Allahabad Act (hereinafter referred to as the Central Act) came into force in the year 2005, the same would have no effect on the rights that had already vested on the petitioner prior to enforcement of Central Act. In fact, those rights were protected under Section 5(d) of the Central Act. It reads as below:

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"5. Effect of incorporation of Allahabad University.......

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(d) Every person employed by the University of Allahabad immediately before the appointed day shall hold his office or service in University by the same tenure, at the same remuneration and upon same terms and conditions and with the same rights and privileges as to pension, leave and gratuity, provident fund and other matters as he would have held the same if this Act had not been passed, and shall continue to do so unless and until his employment is terminated or until such tenure, remuneration and terms and conditions are duly altered by the Statutes"

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In the meantime, fresh Selection Committee was also constituted by the Vice Chancellor of the University to consider, amongst others, the case of the petitioner. Vide its recommendation dated 22.09.2007, that Committee recommended engagement of the petitioner (also) as Guest Faculty against eight existing vacancy determined in the department of Philosophy.

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In any case, in the further Resolution dated 29.10.2009 of

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the Executive Council of the University, required the consideration of cases of research/academic staff in teaching and conducting research. That issue was considered by the Executive Council of the University in its further meeting dated 07.08.2010. At that stage, the Executive Committee resolved to authorize the Vice Chancellor of the University to constitute a proper Committee to consider such cases. In compliance thereof, a Committee was constituted which vide its Resolution dated 17.12.2018 recommended to the Executive Council to appoint the petitioner on permanent basis without reference to a Regular Selection Committee. While making that Resolution, that Committee was conscious of the powers vested in the authorities of the University under Section 31(3)(c) of the 'State Act' and Statute 15.7(IV) of the Statutes of the University and the 'Central Act'.

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The above Resolution of that Committee was approved by the Executive Council vide its Resolution dated 05.04.2019. Corrigendum was also issued on 30.07.2019, again, recognizing the fact of regularization of the petitioner. Thus, according to learned senior counsel for the petitioner, in the first place, the petitioner's services stood regularized under Section 31(3)(c) of the State Act and, in any case, in terms of Statute 15.7(IV) of the Statutes of the Central Act. In that regard, reliance has also been placed on Section 45(2) of the Central Act. It reads as below:

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"45. Transitional provisions.-..........

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(2) Till such time as the first Ordinances are not made under Sub- section (2) of Section 29, in respect of the matters that are to be provided for by the Ordinances under this Act and Statutes, the relevant provisions of the Statutes and the Ordinances made immediately before the commencement of this Act under the provisions of the Uttar Pradesh State Universities Act, 1973 (President's Act 10 of 1973) shall be applicable insofar as they are not inconsistent with the provisions of this Act and the Statutes."

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Since the Selection Committee was constituted under the law (State Act) which was not in conflict with the Central Act, its effect cannot be diluted. The petitioner's regularization stood wholly protected.

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On the other hand, learned counsel for the University would contend, there is no error in the impugned order. However, as to facts, he has clearly stated, the University could not dispute to the facts as have been stated in the writ petition. Yet, he would submit, since the earlier decisions of the University authorities were erroneous and contrary to law, they could not have conferred any benefit on the petitioner. Seen in that light, the impugned order does not require any interference by this Court in exercise of writ jurisdiction. He further submits, the petitioner is claiming continuance as a part time Lecturer, however, in absence of any document to show his initial engagement in the year 1992, the Registrar has rightly rejected his claim.

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Having heard learned counsel for the parties and having perused the record, it cannot be denied, the impugned order does not consider or decide the objections raised by the petitioner. Also, in face of the Resolution of the Executive Council noted above, especially, the Resolution dated 05.04.2019, it is difficult to sustain the order of the Registrar as that would amount to review the decision of the Executive Council. In the hierarchy of authorities of the University, the Executive Committee is different and placed higher to the Registrar of the University. A power of review does exist in terms of Ordinance 84 of the Ordinance of the University, yet the order reviewed by the Registrar not being an order passed by that authority but by the Executive Committee, it could not have been reviewed. In any case, the power of review could be exercised only in the context of enquiry and not any other.

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While such is the situation with respect to the order immediately impugned in the present petition, it does survive for consideration as to rights that had accrued to the petitioner on the date of proceedings initiated by the Registrar. That would determine the relief that may be granted to the petitioner in the present proceedings. Therefore, the consideration of the rights of the petitioner has become necessary.

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Here, it may be seen, under the State Act, subject to his initial engagement prior to 31.12.1997 the petitioner had a right to be considered for regularization under Section 31(3)(c) of the State Act. However, regularization was not an automatic act arising upon operation of law. In fact, it could have been granted by the Executive Council against existing substantive vacancy in the same cadre and grade, to any person validly appointed against a short-term vacancy etc.

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It is the case of the petitioner itself that no automatic regularization arose in his favour. Rather, the petitioner relies on the Resolution of the Executive Council dated 08.12.2011 authorizing the Vice Chancellor to constitute an appropriate Committee to consider the rights then claimed by the petitioner. Consequently, the petitioner can never contend, he stood regularized on any date prior to 08.12.2011. He never set up that case, at that stage - for such right to be vested in him by operation of law. Rather, the petitioner allowed his case to be considered by the Committee constituted by the Vice Chancellor in accordance with the Resolution of the Executive Council dated 08.12.2011.

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Here, it may be noted, the said Resolution of the Executive Council dated 08.12.2011 and the constitution of the Committee by the Vice Chancellor were acts performed wholly after the enforcement of the 'Central Act' in year 2005. On that day, the University itself had acquired the status of a Central University

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governed by the 'Central Act'. Therefore, the Resolution passed by the Executive Council and consequent to constitution of the Committee by the Vice Chancellor have to be examined in that light.

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Then, the petitioner had also participated in another selection conducted by the University (post acquisition of the Central University status). Thus, on 22.09.2007, a Selection Committee of the University had recommended, amongst others, the petitioner to be engaged as a Guest Faculty against eight, then existing vacancies in the Department of Philosophy. Thus, on his own showing, post 22.09.2007, the petitioner continued as a Guest Lecturer appointed by the University, under its newly acquired status as a 'Central University'.

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The upshot of the above discussion is, upon enforcement of the 'Central Act' and post 22.09.2007 the petitioner's case could have been considered by the Selection Committee constituted by the Vice Chancellor under the provisions of the 'Central Act' - for regularisation of Guest Lecturer. The fact that the petitioner's claim made earlier (when the University was governed by the State Act), remained pending, did not create any circumstance as may have allowed the University to consider that claim under the provisions of the 'State Act'. That Act was not in force qua the University, upon it acquiring the status of a Central University.

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Reliance placed by learned senior counsel for the petitioner on Section 45(2) of the 'Central Act' is of no avail. The said provision (as quoted above) first clearly provides, the Ordinance of the University as framed under the State Act would continue to operate and be enforceable despite enforcement of the 'Central Act'. However, it places a restraint on operation of such Ordinance by employing the words "insofar as they are not inconsistent with the provisions of this

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Court and the Statutes". Inasmuch there is no dispute between the parties that upon enforcement of the 'Central Act' and before the claim of the petitioner was taken up for consideration by the Committee, Statute 15.7(IV) had been enforced, it was that law that operated and governed the present case.

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Statute 15.7(IV) of the Statutes of the Central Act reads as below:

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"Where a teacher has been appointed to a Department on the recommendation of a Regular Selection Committee on a Temporary and such post subsequently becomes permanently vacant or another permanent post of the same rank and grade becomes available in the same Department, the Executive Council may appoint such teacher on permanent basis in such department without further reference of to a regular Selection Committee."

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Clearly and unambiguously, that Statute is worded differently than Section 31(3)(c) of the 'State Act'. Then, Section 31(3)(c) of the State Act would not apply by virtue of enforcement of the 'Central Act'. Once the University acquired the status of Central University under the Central Act and it came to be governed by the provisions of that Act, in absence of any specific saving, the provisions of the 'State Act' ceased to operate on the University.

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Here, the scope of Section 5(d) of the Central Act may also be taken note of. It sought to protect the tenure, remuneration and terms and conditions as also the rights and privileges such as pension, leave gratuity etc to the employees as was available to them under the 'State Act'. Thus the petitioner may have only claimed a right to continue as a part-time Assistant Professor/Lecturer. That he continued. Later, on 22.09.2007, he was engaged as a Guest Lecturer of the Central University status of the University. He raised no objection to the same.

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As noted above, up to the date of enforcement of the Central

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Act, no better right or status had been acquired by the petitioner as a regular employee of the University. The first Resolution passed by the Executive Council to deal with the rights being claimed by the petitioner is dated 08.12.2011. It authorized the Vice Chancellor to constitute the Committee to examine the cases of regularization of certain teaching faculty including the present petitioner. That document itself makes it plain, no status had been acquired by the petitioner up to that date as a regular teaching faculty. Once that fact situation becomes plainly apparent on the face of the record, it cannot be gain said that the petitioner was entitled to automatic regularisation by virtue of Section 5(d) of the Central Act. As to the further submission that there existed an earlier Resolution of the Executive Council to regularize all teachers, there is no reference to that in the resolutions of the Executive Council or of the Committee (that form the sheet anchor of the case now set up by the petitioner).

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Even then, the claim of automatic regularisation is defeated upon parallel claim set up by the petitioner claiming appointment as Guest Faculty by the regular Selection Committee, on 22.09.2007. That engagement arose to the petitioner after enforcement of the Central Act. If the petitioner claims prior regularization under the State Act, he could never have sought engagement as a Guest Faculty at the same University, subsequently. Having obtained that engagement in that capacity, it is too late in the day for the petitioner to turn around and claim any higher status conferred on him prior to that date.

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Under Statute 15.7(IV) as framed under the 'Central Act', a teaching faculty engaged on a temporary post may be regularized subsequently if such post becomes permanently vacant or another permanent post of the same rank and grade become available in the same cadre. In that case, the Executive

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Council may appoint such teacher on permanent basis in such department without further reference to the regular Selection Committee.

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For reason of that material difference in language of Statute 15.7(iv) of the Statutes, the claim of continuity would require further consideration. The Selection Committee in its resolution dated 17.12.2018 has clearly reached a conclusion that the petitioner had continuously taught at the University in the department of Philosophy, since his initial engagement on 19.1.1992. It also found, that engagement was made under the 'State Act' and there was no defect in the constitution of the Selection Committee, at that stage.

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All that survives for consideration is whether a post on which the petitioner had been initially appointed had become substantively vacant and was available or any further permanent post of same rank and grade had become available in the department of Philosophy. Plainly, that has escaped consideration of the Committee in its Resolution dated 17.12.2018. Arising therefrom, Executive Council has also not considered that issue.

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Accordingly, order dated 14.02.2020 passed by the Registrar of the University is set aside. If at all, the matter has to be examined by the Executive Council if the post on which the petitioner had been initially appointed in the year 1992 had became vacant on substantive basis and was available (at present), or if any other post in the same pay and grade was substantively vacant in the department of Philosophy on which the petitioner could be regularized in terms of Statute 15.7(IV) of the University framed under the 'Central Act'. That exercise may be completed by the Executive Council, within a period of two months from today.

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All or any amount found due may be paid out in terms of the further decision of the Executive Council within a further period of one month. Failing that, the same would attract interest @ 8%.

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Disposed of .

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Order Date :- 28.11.2022 Prakhar

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Digitally signed by PRAKHAR SRIVASTAVA Date: 2022.12.02 10:28:19 IST Reason: Location: High Court of Judicature at Allahabad

Rajnish Kumar Pandey v. Union of India and 4 Others

Case brief

What is this about?

What did the court decide?

Rajnish Kumar Pandey v. Union of India and 4 Others

Case brief

What is this about?

What did the court decide?

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