Manshyam Verma & Another vs University Of Allahabad & 16 ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A    F    R                                                                                                                             
 

 
                                                                                                     [RESERVED]
 
Case :- WRIT - A No. - 50303 of 2015
 

 
Petitioner :- Manshyam Verma & Another
 
Respondent :- University Of Allahabad & 16 Others
 
Counsel for Petitioner :- Chandan Sharma
 
Counsel for Respondent :- Ram Gopal Tripathi,C.D. Mishra,Hritudhwaj Pratap Sahi,K.P. Shukla,Neeraj Tripathi,Nipun Singh,Pranav Kumar Srivastava,R.G. Tripathi,Rahul Agarwal,Rajeev Mishra,S.C.,S.K. Pal,Sushil Kumar Srivastava,V.K. Pandey,Vijay Kumar Singh,Yogendra Singh Bohra
 

 
Hon'ble Pankaj Mithal,J.

Hon'ble Irshad Ali,J.

We have heard Sri Jitendra Kumar learned counsel for the petitioners; Sri Neeraj Tripathi for the University of Allahabad and the allied authorities (respondents no. 1 to 5); Sri Prashant Kumar Tripathi for respondent no. 7; Sri Vinod Kumar Pandey for respondent no. 8; Sri G.K. Singh, Senior counsel for respondents no. 9 and 10; Sri T.P. Singh, Senior counsel for respondent no. 9; Sri Shashi Nandan, Senior counsel for respondent no. 12; Sri Alok Mishra for respondents no. 14 and 16; Sri Nimai Das for respondent no. 15; and Sri Sushil Kumar Srivastava for respondent no. 17.

Respondent no. 6 has retired and is a formal party who is not represented.

The two petitioners Manshyam Verma and Anuj Kumar Singh have filed this petition for quashing the resolution no. 2/32 dated 2.6.2015 of the Executive Council of the University of Allahabad; to consider the case of the petitioners for appointment, designation and payment of pay scale of Assistant Professor of the department of Ancient History, Culture and Archaeology of the Allahabad University; and for a direction to restrain respondents no. 6 to 17 from working as Assistant Professors in various departments of the Allahabad University and from claiming salary of the said posts.

The petitioners have filed an application for amending the writ petition so as to add additional relief for quashing of the resolution no. 32/12 dated 29.10.2009 passed by the Executive Council of the University. This amendment was moved after the petitioners were served with a counter affidavit enclosing the aforesaid resolution. The amendment application was never pressed by the petitioners and it had remained pending but we have referred to it so that nothing is left out from our consideration provided it is necessary.

In the wake of the aforesaid amendment application even though it has not been allowed, the over all challenge in the petition would be to the resolutions no. 2/32 dated 2.6.2015; 32/12 dated 29.10.2009 passed by the Executive Council of the University; for direction for appointment and designation of the petitioners as Assistant Professors; and for restraining the respondents no. 6 to 17 from functioning as Assistant Professors of Allahabad University and from drawing salary of the said post.

In order to examine the admissibility of the various reliefs as claimed by the petitioners, we have to first consider whether the petitioners are the persons aggrieved and have any locus standi to maintain this petition. Secondly, whether the grant of designation of Assistant Professor and the payment of salary as such to respondents no. 6 to 17 is justified in law. Lastly, entitlement of the petitioners to the post of Lecturer/Assistant Professor of the University.

We would first mention some relevant facts in brief which have led to the filing of this petition and then consider the issue of designation of private respondents as Lecturer/Assistant Professor.

The State Government had issued a Government Order dated 17th October 1998 permitting the State Universities including the University of Allahabad to re-designate its instructors as Lecturers/Assistant Professors from the date of the Government Order.

The Executive Council of the University vide its resolution no.32/2012 dated 29.10.2009 constituted a Screening Committee for considering the matter of re-designation of the instructors working in the University as lecturers/Assistant Professors.

The Screening Committee considering the qualifications etc. of all the candidates and the fact that all of them were teaching in the University as instructors for long, recommended names of 12 persons for re-designation as Lecturers/Assistant Professors.

In pursuance thereof some of them were re-designated as lecturer/Assistant Professor and were granted pay scale of Lecturers/Assistant Professor. In this manner the private respondents were designated as Lecturers /Assistant Professors of the University except respondent no. 6.

In view of the aforesaid resolution of re-designating the 12 instructors as Lectures/Assistant Professors, the matter with regard to re-designation of one Dr. Manik Chandra Gupta (Respondent no. 6), a Pottery Assistant of the department of Ancient History, Culture and Archaeology of the University who has now retired on 31.1.2016 came up for consideration before the Executive Council in its meeting held on 27.2.2015. The Executive Council vide resolution no. 34/30 resolved to consider the grant of designation of Lecture/Assistant Professor to respondent no. 6 as it was done in 12 other cases aforesaid.

The resolution no. 2/32 dated 2.06.2015 of the Executive Council of the University mentions that one of the professors expressed desire to know about the action taken in the case of respondent no. 6 for his re-designation. In response, it was informed that the names of the experts have been decided and the matter is in process. On the issue of regularization claimed by the guest faculty of the department of Philosophy in parity with 12 other staff members as referred to earlier, it was resolved that a 3 member Committee be constituted to examine the representation of the guest faculty and that the recommendations of the said Committee be placed before the Executive Council.

The petitioners were not the persons working with the University at the point of time the aforesaid resolutions were passed by the Executive Council of the University. Therefore, the above resolutions per see does not adversely affects the petitioners as they were not the claimants for re-designation of their status.

Sri Jitendra Kumar, learned counsel for the petitioners argued that none of the instructors could have been re-designated as Lecturers/Assistant Professors so as to entitle them to pay of the said post. He has relied upon the interim order of the Court dated 1.10.2015 passed in the present writ petition, the interim order dated 13.3.2014 passed in writ petition no. 29241 of 2011 of Dr. Mohini Verma, the interim order dated 18.8.2015 passed in writ petition no. 46374 of 2015 of Rajnikant Rai and the final decision of this court dated 5.12.2006 passed in writ petition no. 45992 of 2005 of Dr. Narendra Kumar Pandey. His another limb of argument is that pursuant to the interim order of this Court dated 1.10.2015 the Vice Chancellor so as to revisit the matter had directed to constitute a high power Committee to examine re-designation of the instructors as Lecturers/ Assistant Professors. The Committee submitted two reports; one by two members and the other of the third member and both the reports were placed before the Executive Committee in its meeting held on 28.4.2017. The Executive Committee in its aforesaid meeting mentions that the Court by interim order dated 1.10.2015 had directed the Vice Chancellor to revisit the matter for which purpose initially a Committee was constituted whose report was not accepted. Then a high power Committee was constituted. The Vice Chancellor has approved the majority view of the High power Committee and directed that both the reports as to the majority and minority view of the Committee be placed before the High Court to adjudicate the matter in a legal manner.

To examine the above arguments we begin with the G.O., issued for grant of designation of Lecturers/Assistant Professors to the Instructors.

The Government Order dated 17th October 1998 provides for designating the instructors working in the State Universities as Lecturers and for giving them the pay scale of Lecturers provided they fulfil the necessary qualifications as laid down by the UGC and the State Government and that such posts of instructors would die out with the retirement of such re-designated Lecturers.

For the sake of convenience and ready reference G.O dated 17th October 1998 is quoted below:-

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The aforesaid G.O., authorized the State Universities to re-designate the instructors working in the University as Lecturers subject to fulfilment of the conditions mentioned therein. The University of Allahabad now a Central University, at that time was a State University. Thus it was also authorized to re-designate the instructors working with it as Lecturers and pay salary accordingly.

It is not the case of the petitioners that the private respondents were not working as instructors in the University or were not imparting education to the students or were not eligible to teach as Lecturers. All the private respondents except respondent no. 6 were re-designated as lecturers after their eligibility and suitability was verified for the purpose on the basis of the report of the Screening Committee constituted.

In view of the above G.O., and the report of the Screening Committee apparently there appears to be no illegality on part of the University to give the status of Lecturers to the Instructors namely the private respondents except respondent no. 6.

It is important to mention that in the past some Research Assistants working at the University also claimed designation of Lecturers as they were discharging the same functions as that of Lecturers. One of the writ petitions to the aforesaid effect was allowed by the High Court vide Judgment and order reported in 1993(1)UPLBEC 544 Pankaj Kumar Vs. University of Allahabad and another. The Court therein held that the qualifications of the Research Assistants and that of the Lecturers are the same; they have been performing same kind of teaching duties; they have been selected by the Selection Committee like adhoc lecturers and some of the Research Assistants were receiving salary as Lecturers, may be under the orders of the Court. Therefore, they are entitle to get the designation and salary of the post of Lecturer.

After the aforesaid judgment some other Research Assistants were granted designation of the Lecturers by the Universities itself.

Subsequently, some instructors of the Music department also claimed the designation of a Lecturer by filing a writ petition. It was dismissed vide judgment and order reported in 1996 ALJ 1624 Radhey Shyam Bhatta and others Vs. State of U.P. and others as the High Court opined that it is difficult for it to record finding if they were performing the functions and duties assigned to that of Lecturers.

However, when the writ petition of one of the instructors of the department of the Fine Arts of the University came up for consideration, the matter was referred to the Larger Bench probably in view of the conflicting opinions expressed in Pankaj Kumar and Radhey Shyam. The Full Bench vide its decision reported in 1999 (1) ESC 162 (Ald.) (FB) Ajay Kumar Jaitly Vs. State of U.P. and another held that it is not for the Court to grant designation but for the employer alone to accord designation of the post to its teaching staff.

The issue of designating the Instructors of the State Universities as Lecturers and if so whether the same can be with retrospective effect came up for consideration again before another Full Bench of this Court in P.K. Malik Vs. State of U.P 2005 (4) ESC 2404. The Full Bench taking note of the Government Order dated 17.10.1998 and the earlier Full Bench decision in the case of Aajay Kumar Jaitly ruled that the Government Order dated 17.10.1998 which gives the benefit of re-designation as Lecturers to the Instructors of the University is valid and well within the powers of the State Government. The persons holding the posts of Instructors in the Universities can be treated to be Lecturers by their employers ie., the Government. They are entitle to re-designation even if they have not applied for the same. The Court can give retrospective operation to the aforesaid G.O, if the Government has failed to do so, to avoid discrimination and arbitrariness, in short the unconstitutionality.

In the light of the above two Full Bench decisions the law appears to have crystallised to the effect that the employer is competent to grant suitable designation to its employees and that the State Universities can re-designate the instructors as Lecturers without even inviting any applications from them on the basis of Government Order dated 17.10.1998 and on the fulfilment of the conditions laid down therein.

The right to be re-designated as Lecturer/Assistant Professor accrued to the private respondents on the basis of the G.O. Dated 17.10.1998 before the University was declared to be a Central University.

In view of the above legal position and the Government Order dated 7.10.1998 coupled with the resolution of the Executive Council of the University based upon the report of the Screening Committee as to the eligibility and qualifications of the Instructors, the University committed no wrong in re-designating the Instructors as Lecturers.

It is no one's case that the Instructors who were designated as Lecturers or as a matter of fact the private respondents herein are not qualified to function as Lecturers or that their eligibility was never examined.

The matter of re-designation of respondent no. 6 was under process of examination but before he could be re-designated as Lecturer he had retired on 31.1.2016. Accordingly, he was never given any benefit of the post of Lecturer.

The main plank of learned counsel for the petitioners in disputing the grant of designation and pay of lecturer to the private respondents is the judgment and order of the Division Bench of this Court in 2010 (6) ADJ 528 Dr. Narendra Kumar Pandey Vs. Registrar, University of Allahabad and others.

In the said case the petitioners which included some of the private respondents herein claimed to be part time lecturers for getting regularization of their services as Lecturers under Section 31 (3) (C) of the U.P. State Universities Act. The University by then had ceased to be the State University and had become a Central one. Accordingly, the provisions of the Act had ceased to apply to it. Moreover, the petitioners therein were instructors not part time lecturers. The writ petition as such was dismissed holding that as the petitioners were not appointed as part time Lecturers they were not entitled for regularization of services as Lecturers. However, the Court therein made no comment that the designation of a Lecturer can not be granted to the instructors. Thus, the aforesaid judgment was in a totally different set up and was confined to extending the benefit of Section 31 ((3) ( C) of the Act and not with regard to the grant of designation of Lecturer to the instructors or the Research Assistants. The aforesaid decision therefore, has no applicability to defeat or nullify the claim of the private respondents.

The interim order dated 13.3.2015 in the case of Dr. Mohini Verma relates to that of Tabala accompanist of C.M.P. Decree College affiliated to the University who had claimed re-designation as Lecturer. The Court referring to the decision of the Division Bench in Dr. Narendra Pandey and in view of University of Allahabad Act, 2005 which had come into operation prima-facie opined that the University could not have re-designated the 12 instructors as Lecturers and the University should revisit the matter.

The opinion expressed by the Division Bench in the aforesaid interim order was not the final one. The said writ petition was got dismissed as withdrawn on 7.10.2014 with the specific direction that the interim order passed therein stands vacated. Thus with the dismissal of the above writ petition the aforesaid interim order which has been relied upon ceased to exist and lost all value. Moreover, the prima-facie opinion expressed therein was based upon the decision of Dr. Narendra Pandey which has been distinguished earlier.

Similarly, the interim order in the case of Rajnikant Rai is based upon the interim order passed in the case of Dr. Mohini Verma expressing prima-facie opinion that the University is conferring illegal benefits. The said interim order can not be a binding precedent particularly when the earlier interim order on the basis of which it was passed had ceased to exist.

Now we come to the interim order dated 1.10.2015 passed in the present writ petition.

The said interim order dated 1.10.2015 is also based upon the decision in the case of Dr. Narendra Kumar Pandey and the interim order in Dr. Mohini Verma's case. It directs the Vice Chancellor to revisit the matter of grant of designation of Lecturers to the Instructors in the light of the judgment referred to therein.

In pursuance of the above interim order the then Vice Chancellor had constituted a review Committee under the Chairmanship of Pradeep Bhargawa. The said Committee reported and recommended that in the light of the earlier decisions of the Court, the 12 persons referred to are legally entitle for designation of Lecturers. The report of the said Committee was not accepted and a high power Committee was constituted on 20.1.2016. The high power Committee examined the matter but there was no unanimity in their opinion. The two members submitted their majority report and the third member submitted the minority view.

The reports were placed before the Executive Council and a resolution was passed on 28.4.2017 to request the Court to decide the matter legally. Thus, neither the Vice Chancellor nor the Executive Council revisited the matter to take any final decision either in favour of re-designation of instructors as Lecturers or that such re-designation is not admissible except for constituting the above Committees for the purpose.

It may be pertinent to mention herein that revisiting of decision of the Executive Council is like reviewing its decision. The State Universities Act or the Allahabad University Act no where confers any power of substantive review upon the Vice Chancellor or the Executive Council.

It is settled in law that the power of substantive review can not be exercised unless it is specifically provided under the Statute. Thus, in our opinion no purpose could have been served even if the Vice Chancellor or the Executive Council would have taken a decision contrary to the earlier decisions as they would have been without jurisdiction. It is tirite to mention that it is well recognised if the jurisdiction is not vested in the authority under the relevant statute it can not be conferred by the Court.

This apart as pointed out earlier the resolution of the Executive Council no. 2/32 dated 2.6.2015 is innocuous and causes no prejudice to any party, in as much as, it only resolves for the constitution of a 3 member Committee for consideration of the representations received from the guest faculty. Thus, the challenge to such a resolution is misconceived and is of no use at all. No action in pursuance to it till date has been taken rather one of the persons entitled to some benefit if any had retired in between without availing such a benefit.

The challenge to the resolution no. 32/12 dated 29.10.2009 of the Executive Council by way of the amendment is too late in the day. The petitioners have no locus standi to challenge the same as at that time they were not qualified and eligible for any post in the University. The challenge to the said resolution suffers from gross laches and delay and is only an after thought.

The aforesaid resolution is harmless otherwise also as it only constitutes a screening Committee for re-designating instructors as Lecturers. It causes no prejudice to the petitioners as they were not the contenders for the post.

The petitioners apart from challenging the aforesaid resolution is not assailing the actual order of appointment/re-designation as Lecturers given to the private respondents.

The prayer of the petitioners to consider them for designation and to pay the scale of Assistant Professor on the face of it is not admissible as the petitioners are not teaching in the University and have not even applied for any post.

The petitioner no. 1 in the petition alleges that he is B.A and M.A. Ancient History, Culture and Archaeology from the Allahabad University. The petitioner no. 2 alleges that he is B.A. M.A (Philosophy and Ancient History).

Both of them allege that they passed National Eligibility Test (NET) from History of the University Grant Commission which makes them fully qualified and eligible for being appointed as Assistant Professor but fall short to aver that they were working as the teaching staff or have applied for it.

The last prayer of the petitioners to stop private respondents from functioning as Lecturers and to stop their salary as Lecturers is completely misconceived as they have nothing to do with the posts held by them. The petitioners are qualified in History, if at all, and would be eligible for consideration for a post in the Ancient History, Culture and Archaeological department. None of the private respondents except respondent no. 9 are in any way connected with the said department as they are functioning in different departments other than Ancient History, Culture and Archaeology.

The petition as filed is not for issuing any writ of Quo Warranto. It is not even in public interest.

It is therefore, not only a misconceived petition but an ill advised one. It is accordingly dismissed both on the ground of locus of the petitioners and merits.

SKS

18.12.2017