JUDGMENT R.M.S. Khandeparkar, J.
Page 1866
1. The present appeal arises from the Judgment and Order dated 9-10-2003, passed by the learned single Judge in Writ Petition No. 7330 of 2002. By the impugned Judgment, the learned single Judge has set Page 1867 aside the order dated 4-12-2002, passed by the University Tribunal and consequently has also set aside the order of termination of services of the respondent which was passed by the appellant-University on 3-9-2002.
2. The facts relevant for the decision are that the respondent joined the appellant-University as an Internal Auditor with effect from 20-6-1996. An advertisement came to be issued on 6-5-1997 inviting applications for the post of Finance and Accounts Officer in the appellant-University. Pursuant to the application of the respondent and after having undergone the selection process and on nomination by the Selection Committee, he was appointed as the Finance and Accounts Officer under the appellant under the letter dated 30-7-1997. The respondent accepted the said appointment under his letter dated 1-8-1997 and joined the services. Initially, the appointment was on probation and subsequently the respondent was confirmed in the said post on 1-8-1999. By an ordinance dated 12-5-2000, the Government of Maharashtra sought to amend the provisions of the Maharashtra Universities Act, 1994, hereinafter called as "the said Act". By virtue of the amendment, Section 20(1)(c) was introduced in the said Act whereby the post of Finance and Accounts Officer in all Non-Agricultural Universities in Maharashtra was converted into a tenure post, fixing the tenure to be of five years. The said amendment ordinance was subsequently approved by the Maharashtra State Legislative Assembly and by virtue of Act No. LV of 2000, the said amendment was incorporated in the said Act under the Amendment Act No. LV of 2000. Consequent to the said amendment, apprehending termination of his services by the appellant, a suit came to be filed by the respondent in the civil Court at Pune on 31-7-2002. Initially, the civil Court directed the maintenance of status quo in respect of the respondent's continuation in the said post. The appellant-University challenged the jurisdiction of the civil Court by filing an application under Section 9-A of the Code of Civil Procedure on 1-8-2002. The civil Court held that it had jurisdiction to entertain and try the suit by its order dated 7-8-2002. The matter was carried in revision application by the University and by the order dated 18-10-2002, the respondent was permitted to withdraw the civil suit with liberty to prosecute the appeal already filed by him before the University Tribunal. Obviously therefore, after withdrawal of the said suit, the matter proceeded before the University Tribunal. In fact, the matter before the University Tribunal was against the order dated 3-9-2002 as the said order came to be issued by the appellant terminating the services of the respondent pursuant to the ad-interim relief granted by this Court in civil revision application which was filed by the appellant against the order of the civil Court on the point of jurisdiction of the civil Court to deal with the matter. The appeal filed before the University Tribunal came to be dismissed by the order dated 4-12-2002. Thereafter, the matter was carried in Writ Petition No. 7330 of 2002 wherein the impugned order was passed on 9-10-2003.
3. Before going to the merits of the case, it is necessary to deal with the preliminary objection sought to be raised on behalf of the respondent by filing Civil Application No. 139 of 2005. It is the contention on behalf of the Page 1868 respondent that the L.P.A. having been filed by the Registrar of the University, the same is not maintainable in the sense that the Registrar has no authority to file such an appeal on behalf of the University. In that regard, attention is drawn to Section 17(6) and (7) of the said Act. On the other hand, it is sought to be contended on behalf of the appellant that the Registrar has been duly empowered by the Vice-Chancellor of the University and the appeal has been filed pursuant to the said direction by the Vice-Chancellor.
4. It is sought to be contended on behalf of the respondent that the Registrar, in the absence of power being given by the competent authority of the University, cannot file appeal. However, it is to be noted that the Sub-section (12) of Section 17 specifically provides that the Registrar shall exercise such other powers and perform such other duties as prescribed by or under the Act or assigned to him, from time to time, by the Vice-Chancellor. In the case in hand, it is the case of the Registrar of the appellant-University that he has been specifically directed and authorised by the Vice-Chancellor to file the present appeal. In fact, in reply to the application filed by the respondent raising preliminary objection, the Registrar has filed affidavit-in-reply and therein it has been categorically stated that "it is stated that the Vice-Chancellor of the University had instructed and authorized the Registrar to prefer a LPA against the Judgment and Order passed by Learned Single Judge on 9th October, 2003 and the Vice-Chancellor had also personally instructed Adv. Saxena to take the steps in this matter.". There is no counter affidavit filed by the respondent. Obviously, the statement on oath made by the Registrar is not denied or controverted by the respondent and, therefore, it is to be taken as established by the Registrar that he has been instructed and authorised by the Vice-Chancellor to file the appeal. Since Section 17(12) clearly empowers the Vice-Chancellor to issue necessary instructions and it becomes obligatory for the Registrar to comply with such instructions issued within the parameters and powers under the Act by the Vice-Chancellor, and in the case in hand the Vice-Chancellor having duly authorised the Registrar to file the appeal, the preliminary objection sought to be raised in the matter does not sustain and is, therefore, rejected. Consequently the Civil Application No. 139 of 2005 is liable to be rejected. 13th June, 2006 JUDGMENT:
5. As regards the merits of the case, challenge in the matter was to the order of termination of services of the respondent which has been admittedly issued in terms of the amended provisions of the said Act. It is to be noted that there was no challenge to the vires of the amended provisions of the said Act.
6. The relevant provision of the said Act is Section 20. Prior to the amendment in terms of Section 20(1)(a), the Finance Officer was to be a full-time salaried officer and to work directly under the control of the Vice-Chancellor, and the Clause (b) provided that the Finance and Accounts Officer was to be appointed by the Management Council either by nomination or by obtaining the services of a suitable officer on deputation from the Government of India or the State Government. By virtue of the amendment in Clause (b), the expression "Finance Officer" was changed to "Finance and Accounts Officer", and further Clause (c) was added under which it has been provided that "The appointment of the Page 1869 Finance and Accounts Officer shall be for a term of five years if appointed by nomination and he shall be eligible for re-appointment for only one more term of five years.". It was by resorting to this amended provision under Clause (c) of Section 20(1) of the said Act that the management sought to terminate the services of the respondent on completion of period of five years.
7. The contention of the appellant is that the said amendment Act being made enforceable from 12-5-2000 and the respondent having completed the period of five years after the enforcement of the said amended provision, the service tenure of the respondent is subject to the said statutory provision and, therefore, the University was justified in terminating the services of the respondent. On the other hand, it is the case of the respondent that he having been appointed in terms of the provision of law which were in force prior to amendment to Section 20, i.e., prior to 12-5-2000 he has acquired vested right and the same cannot be taken away by the amended provision and, therefore, the amended provision cannot be made applicable to the respondent. It is also the contention on behalf of the respondent that the amended provision applies to the candidates who are appointed by nomination and the respondent was not appointed by nomination but he was appointed on regular selection by duly constituted Selection Committee in terms of the provision comprised under Section 79 of the said Act and, therefore, his appointment cannot be said to be on nomination within the meaning of the said expression in Section 20(1)(b) of the said Act. On behalf of the appellant, reliance is sought to be placed in various reported decisions, reference to which shall be made in the course of the judgment.
8. Plain reading of Section 20(1)(c) of the said Act would reveal that it specifies the fixed term for the Finance and Accounts Officer. It clearly specifies that the appointment of such officer shall be for a period of five years and he shall be eligible for re-appointment for another period of five years. In other words, the total period for which one candidate can occupy the post of Finance and Accounts Officer is specified to be of ten years under the said Section. It neither states that such period will apply only to those candidates who have been appointed on or after 12-5-2000, nor it states that it would not apply to candidates who were appointed prior to 12-5-2000.
9. Undoubtedly, in terms of Section 20(1)(b), the Finance and Accounts Officer is to be appointed by the Management Council either by nomination or by deputation. The term 'nomination' has not been defined under the said Act. The dictionary meaning of the term "nominate" is to name as candidate, or to appoint to office, or to put forward as a candidate for a job. Obviously, therefore, the expression 'nominate' as used in Section 20 is to be understood as referring to the mode of selection of candidate as specified under the said Act. Having so understood, it is to be construed as synonymous to the word 'recommendation' by the Selection Committee constituted under the provisions of the said Act. The Section 79 of the said Act deals with the subject of Selection Committees for officers and employees of University. The Clause (a) of Sub-section (1) thereof provides that there shall be a Selection Committee for making recommendations of suitable candidates for appointment to the posts, including the one of Finance and Accounts Officer, and Clause (b) deals with the constitution of such Selection Committee. The Section 79 does Page 1870 not speak about the appointment of a candidate for the post of Finance and Accounts Officer but it relates to the authority which shall select or nominate a candidate for appointment to such post.
10. Undoubtedly, Section 20(1) Clauses (b) and (c) of the said Act refer to two types of modes for appointment of candidate in the post of Finance and Accounts Officer -one by nomination and the other by way of deputation. The conjoint reading of Section 20 and Section 79 of the said Act would, therefore, reveals that in case of appointment by nomination, it has to be by way of selection of candidate by the Selection Committee in terms of the provisions under Section 79 of the said Act. Once the candidate is selected, he/she is nominated for the purpose of appointment and thereupon the person is appointed by the competent authority. The other mode is by way of procuring the services of a suitable officer on deputation, either from the State Government or the Central Government. The term "nomination" does not disclose any other procedure than by way of selection by the Selection Committee constituted under Section 79. Once Section 79 clearly states that the Finance and Accounts Officer shall be selected by the Selection Committee constituted under the said Act and the provision regarding the appointment of such officer prescribes only two modes for appointment, one by nomination and the other by deputation, and the Section 79 being not related to candidates who are to be appointed on deputation, obviously the nomination has to be by way of selection by the Selection Committee constituted under Section 79. Therefore, the term "nomination" in Section 20 essentially and only relates to the candidates selected by the Selection Committee constituted under Section 79 and it does not refer to any other process preceding the appointment.
11. The impugned Judgment proceeds to hold that the phraseology of the amended provision of Section 20(1)(c) does not expressly provide that the same is retrospective in nature and further referring to the decisions in Chairman, Railway Board and others v. C.R. Rangadhamaiah and others, and P. Tulsi Das and others v. Govt. of A.P. and others, , it holds that the said provision would be effective only from 2-5-2000 in the sense that it would govern the appointments made on or after 12-5-2000 and not prior thereto. It has also been held that the employees who were appointed and confirmed earlier to 12-5-2000 have acquired vested right and, therefore, the new legislation cannot be given retrospective effect as it would affect their service conditions.
12. The Apex Court in C.R. Rangadhamaiah's case (supra) was dealing with the rights of the retired employees in relation to pensionary benefits. It was held that the pension is payable to retired employees who are no more in service and is determined on the basis of emoluments payable at the time of the retirement. It clearly reiterated its earlier decision in Deokinandan Prasad v. State of Bihar wherein it was held that:
pension is not to be treated as a bounty payable on the sweet will and pleasure of the Page 1871 Government and that the right to superannuation pension including its amount is a valuable right vesting in a government servant." In other words, right to pension is a vested right in a retired Government servant. However, at the same time, taking note of various earlier decisions including the State of Gujarat v. Raman Lal Keshav Lal Soni , K.C. Arora v. State of Haryana , T.R. Kapur v. State of Haryana {1986 Supp. SCC 584}, P.D. Aggarwal v. State of U.P. , K. Narayanan v. State of Karnataka {1994 Supp. (1) SCC 44}, Union of India v. Tushar Ranjan Mohanty and K. Ravindranath Pai v. State of Karnataka {1995 Supp. (2) SCC 246}, it was held that the expression "vested right" has been used in the context of a right flowing under a relevant rule which was sought to be altered with effect from an anterior date, and thereby to take away the benefits which were available under the rule in force at that time, and in that context, it was ruled that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. Further with reference to the case of C.R. Rangadhamaiah, it was observed that the Court therein was concerned with the case relating to the pension payable to the employees after their retirement. In that regard, it was also observed that the concerned persons were no longer in service on the date of issuance of the Notification which was sought to be impugned. Considering the fact that the amendments to the Rules were not restricted in their application in futuro, and the amendments were sought to be applied to the employees who had already retired and who were no longer in service on the date of the impugned Notification, it was held to be bad in law. However, at the same time, it was also held that:
It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively.
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13. The rule, therefore, which was laid down by the Apex Court in the said decision was to the effect that any changes brought about in the terms and conditions of the service which would affect the employee retrospectively or which would take away the benefits which have already been granted, could be challenged being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively. But if the rules which operate in futuro, without affecting the accrued or vested rights, cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution. Obviously therefore, the decision is of no help to contend that the amendment brought about to Section 20 of the said Act will not apply to the candidates who are already occupying the post of Finance and Accounts Officer on or after the day the said amendment came into force.
14. It cannot be disputed that tenure of service forms part of the terms and conditions of the service. The Apex Court in Dr. D.C. Saxena v. State of Haryana and others, , had clearly ruled that the expression "terms of service" clearly includes the tenure of service. Obviously therefore, Clause (c) to Section 20(1) of the said Act relates to the terms of service and it applies to the service of Finance and Accounts Officer of the University appointed under the said Act. The applicability of the amended provision to the officers occupying the post of the Finance and Accounts Officer from the date of enforcement of the amended provisions cannot be disputed on the basis of the decision in C.R. Rangadhamaiah's case as the said decision nowhere supports the contention sought to be canvassed on behalf of the respondent.
15. In P. Tulsi Das's case (supra), the Apex Court had held that it is well-settled that in the absence of rules under Article 309 of the Constitution in respect of a particular area, aspect or subject,it is permissible for the State to make provisions in exercise of its executive powers under Article 162 which is coextensive with its legislative power, laying conditions of service and rights accrued to or acquired by a citizen under such provisions would be as much rights acquired under law and protected to that extent. It was further held that the provisions of the Act, though can be valid in its operation in futuro, same cannot be held valid insofar as it purports to restore status quo ante for the past period taking away the benefits already available, accrued and acquired by them. No exception can be taken to the prospective exercise of powers thereunder without infringing the rights already acquired by the employees and the category of the persons similarly situated whether they approached the Courts or not seeking relief individually.
16. It is pertinent to note that there is no challenge to the vires of the amended provision in Section 20 of the said Act. The challenge is restricted to the order terminating the services based on the amended provision. The limited scope of inquiry, therefore, is to ascertain whether the order of termination is strictly in consonance with the amended provision of law or not. Undoubtedly, for that purpose, it will be necessary to ascertain whether the Page 1873 provision is retrospective or not, whether it would be applicable to the officers who are appointed only after 12-5-2000, or whether it will apply even to those officers who were appointed prior to 12-5-2000. Evidently, therefore, it will also be necessary to ascertain whether the applicability of the amended provision to the officers appointed prior to 12-5-2000 would amount to giving retrospective effect to the amended provision or it would merely amount to giving effect "in futuro".
17. The Apex Court in Roshan Lal Tandon's case (supra) clearly held that the origin of Government service is contractual. But once appointed to his post or office, the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract.
18. In Govt. of A.P. and others v. Syed Yousuddin Ahmed, , the view taken in Roshan Lal Tandon's case was reiterated and it was held that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant but a legal relationship something in the nature of status.
19. In Bishun Narain Misra v. The State of Uttar Pradesh and others, , while holding that the termination of services of a Government employee resulting from the change in the age of superannuation does not amount to removal within the meaning of Article 311 of the Constitution of India, it was held that a rule reducing the age of retirement from 58 years to 55 years cannot be said to be retrospective in operation. Referring to the proviso to the rule, it was held that it was merely a method to tide over the difficult situation which would arise in public service if the new rule is applied at once and also to meet any financial objection arising out of the enforcement of the new rule. While rejecting the contention that the rule virtually amounts to giving retrospective operation, it was held that the rule merely provides that from the date it comes into force, the age of retirement would be 55 years. It would, therefore, apply from that day to all Government servants, even though they might have been recruited before 25-5-1961 in the same way as the rule of 1957, which had increased the age from 55 to 58 years and was applied to all Government servants even though they were recruited before 1957. While amending the age of superannuation, a proviso was sought to be introduced which reads thus:
Provided that a Government servant who had not retired on or before June 17, 1957 but has subsequently attained the age of 55 years and has on May 25, 1961 not attained the age of 58 years shall, for the period he has continued to serve after attaining the age of 55 years be deemed to have been retained in service beyond the date of compulsory retirement, i.e., the age of 55 years within the meaning of the Rule aforesaid.
Page 1874 Referring to the above quoted proviso, it was sought to be argued that the same shows that the rule was sought to be applied retrospectively. Rejecting the said contention, the Apex Court ruled that the proviso merely lays down that the Government servant who had attained the age of 55 years on or after 17-6-1957 and had not attained the age of 58 years on 25-5-1961, were deemed to have been retained in service after the date of superannuation, namely, 55 years. The proviso, it was held, did not make the rule retrospective. It only provided as to how the period of service beyond 55 years was to be treated in view of the earlier rule of 1957 which was changed by the rule of 1961. Indeed, the decision of the Apex Court is a complete answer to all the contentions sought to be raised on behalf of the respondent. Unfortunately, it appears that this decision was not brought to the notice of the learned single Judge while deciding the matter.
20. In M. Ramanatha Pillai v. The State of Kerala and another, , it was held by the Apex Court that the abolition of post may have the consequence of termination of service of a Government servant but such termination is not dismissal or removal within the meaning of Article 311 of the Constitution of India. The abolition of post is not a personal penalty against the Government servant. The abolition of post is an executive policy decision. Similarly, the service tenure in relation to a particular post or the age of retirement of the Government employee is a matter of policy. Merely because in implementing a statutory provision introduced as a result of such Government policy, certain requisites are drawn from the time antecedent to its implementation, it cannot be said that the statutory provision is given retrospective effect.
21. Considering the law on the point in question and the provision comprised under Section 20(1)(c) of the said Act, it cannot be said that merely because the person was appointed prior to 12-5-2000, the provision incorporated under the said amended clause will not apply to such person. The law laid down in Bishun Narain Misra's case (supra) clearly states that the rule regarding the service tenure is a matter of policy to be decided by the Government. Accordingly, the post of Finance and Accounts Officer being made a tenure post, it will apply to all the incumbents in the said post from the day the law in that regard has come into force. Those who have completed five years before coming into force of the said Act will also be covered by the said provision and their service tenure cannot be considered different from the tenure of those who are appointed on or after 12-5-2000. The same principle will have to be applied in all such cases irrespective of their date of appointment. No vested right is accrued in favour of the person occupying such post and it is a status acquired by such officer and his service conditions including the tenure of service are subject to the rules and regulations framed by the Government from time to time. The Government having declared the said post to be a tenure post for five years, on completion of the said period the incumbent thereof has to leave the post, unless his tenure is renewed for Page 1875 the second term of five years by the University. The observation in the impugned Judgment that the employee has acquired vested right, and that therefore the Legislature cannot take away the same by giving retrospective effect to the provision comprised under Section 20(1)(c) of the said Act is not sustainable. There is no vested right in favour of the Government servant in relation to their services and they merely hold a status and not like an ordinary contract of service between a master and servant. Same principle will apply to the relationship between the employer and employee of local bodies and public institution like the University. Therefore, no fault could have been found with the order passed by the appellant terminating the services of the respondent in terms of Section 20(1)(c) of the said Act and, therefore, there was no justification for interference in the order passed by the University Tribunal. Considering the same, the impugned Judgment cannot be sustained.
22. It was also sought to be argued on behalf of the respondent and in fact the learned single Judge has held that the Vice-Chancellor could not have over-ridden the management council in the sense that the management council had passed resolution for continuation of the services of the respondent. In this regard, the appellant was justified in submitting that the issue regarding the resolution of the management council is neither a pure question of law nor it was raised before the University Tribunal and, therefore, it was not permissible for the respondent to raise the said issue for the first time in the writ petition before the learned single Judge, nor the learned single Judge could have in writ jurisdiction interfered in the order passed by the University Tribunal on the basis of the alleged resolution. It is not permissible for the parties to produce further evidence as a matter of right to seek intervention in the order passed by the University Tribunal in the course of hearing of the writ petition. The learned single Judge clearly erred in placing reliance on the alleged resolution to justify interference in the order passed by the University Tribunal.
23. For the reasons stated above, therefore, the impugned decision cannot be sustained and is liable to be set aside and the decision passed by the University Tribunal to be confirmed.
24. The Letters Patent Appeal therefore succeeds. The imupgned Judgment is quashed and set aside and the Order of the Tribunal and that of the appellant is restored. The Civil Application No. 139 of 2005 is dismissed. No