Nagpur University Officers' ... vs State Of Maharashtra, Through Its ...
2002 Latest Caselaw 1224 Bom

JUDGMENT

R.G. Deshpande, J.

1. Petitioner No. 1, a registered association of the employees of the Nagpur University alongwith some of its members have approached this Court challenging the action of the respondent No. 3 - University of not implementing the resolution/decision passed by the Executive Council of Nagpur University to grant pay-scales to its non-teaching officers/staff on par with the University teaching staff. Petitioners have also challenged the alleged inaction on the part of the respondent/State Government to grant necessary sanction to the decision of the University referred to above for giving effect and implementing the said resolution/decision for the benefit of the non-teaching staff. Petitioner Nos. 2, 3, 4 and 5 respectively held the substantive posts of Deputy Registrar, Assistant Registrar, Garden Superintendent and Press Superintendent. The petitioner No. 1 has, therefore, filed this Petition in a representative capacity also.

2. It is the contention of the petitioners that till October 25, 1987, the non-teaching officers' posts were at par with the alleged equivalent posts of the teaching staff, for the purposes of pay-scale. Petitioners' contention is that the post of the Registrar of the University was equal to that of Professor in the University, the post of Deputy Registrar was equivalent to that of Reader and the post of the Assistant Registrar was equal to the post of Lecturer. According to the petitioners, prior to the year 1977 these posts i.e. on administrative side non-teaching posts referred to above were on par with the posts with the teaching side so far as the pay-scale was concerned. Petitioners, no doubt, have in their petition shown in tabular form as to how the posts were treated equal so far as regards the pay-scale was concerned. The same is reproduced as under: Pay Scales of Non-teaching and teaching staff prior to 1.4.1976 Non-teaching staff Teaching staff Post Scale Post Scale

1. Registrar (Librarian) 1100-1600 Professor 1100-1600

2. Dy. Registrar - Finance Officer - 700-1250 Reader 700-1250 Development Officer - University Engineer - (Dy. Librarian)

3. Asstt. Registrar - Garden Supdt. 400-950 Lecturer 400-950 = Press Supdt. = (Asstt. Librarian) = (Director of Phy. Education)

- Medical Officer 325-850 (with nonpracticing allowance.)

4. According to the petitioners there was no complete equivalence of pay-scale for certain other posts such as Librarian, University Engineer, Director of Physical Education, Medical Officer etc. However, for the purposes of this Petition, the petitioners have restricted their claim that the above referred three categories from the non-teaching staff were no doubt treated equal so far as regards the status and pay-scale was concerned with the categories in the teaching staff referred to above.

5. The respondent No. 1 - Government of Maharashtra vide its Resolution No. USD. 1177/129387/XXXII (CELL) dated October 25th 1977, through its Education Department, implemented the University Grants Commission's recommendations for revision of pay scales for the teaching staff in the category of Professors, Readers and Lecturers. This revision of pay scale in the cases of above said teaching staff, is also granted from 1.1.1973 i.e. with retrospective effect. This revision is in the cases of Professors from Rs. 1500-2500, in the cases of Readers from Rs. 1200-1900 and in the cases of Lecturers from Rs. 700-1600 respectively. Though the scales of the teaching staff are increased as mentioned above, the grievance of the petitioners is that the University did not do any such revision in the scale of non-teaching staff parallel to that of the teaching staff. Their grievance is that initially the scale of the Professor, Reader and Lecturer were also made applicable to the Registrar, Deputy Registrar and the Assistant Registrar respectively.

6. Since there was no revision in the pay scale of the non-teaching staff parallel to that of the teaching staff, that definitely was bound to disturb the members of the non-teaching staff who till then were being paid equal to that of the teaching staff. This naturally prompted the petitioners to approach the Vice-Chancellor with their grievance through their representation dated December 7th, 1977. Representations were no doubt made by the various persons belonging to the non-teaching staff including the petitioner No. 2. The petitioner No. 1 at the relevant time was not in existence and hence the representations were made by the other petitioners individually. Through their representation, the petitioners tried to put it on the ears of the University Authorities that it was a consistent practice to maintain the parity of scale between the members of the non-teaching and teaching staff and when so ever there used to be revision in the pay scales of teaching staff, similar revision of pay scale was being made or granted to the non-teaching staff also. However, according to the petitioners, though scale as suggested by the University Grants Commission was accepted in the cases of teaching staff through the above referred Government Resolution dated October 25, 1977, the same benefit was not extended to the members of the non-teaching staff. Petitioners also made various representations in this respect. Ultimately the matter was taken to the Executive Council of the respondent No. 3 - University and the Executive Council of the Nagpur University-respondent No. 3 in its meeting dated August 5, 1978 considered the representation of the non-teaching staff and vide item No. 48 resolved that the salaries of the non-teaching staff be brought on par with those of the teaching staff and also from the same date i.e. 1.1.1973. In accordance with this Resolution of the Executive Council. It is the contention of the petitioners that the post of Registrar was to be brought in the scale of that of Professor, the post of Deputy Registrar was to be brought equivalent to the post of Reader and that of Assistant Registrar to the post of Lecturer.

7. The main grievance of the petitioners is that though the abovesaid Resolution dated 5.8.1978 was passed, till date the same could not be implemented thereby the petitioners are made to suffer substantial monetary loss. It is the case of the petitioners that though the University in its Executive Council meeting readily accepted to give the necessary effect to that Resolution thereby revising the pay scale of the non-teaching staff, however, it was because of the inaction on the part of the respondent No. 2 of granting approval, the petitioners are deprived of these benefits.

8. The respondent Nos. 1 and 2 controverted the claim of the petitioners contending that a mere approval by the Executive Council in its meeting dated 5.8.1978 of the principle of revision of salary/pay scale as proposed by the petitioners, by itself was not sufficient to pay the same to the members of the non-teaching staff as claimed. Respondents specifically pointed out that in the year 1967, there was revision of pay scales in the cases of non-teaching staff. However, it was made as was directed by the State Government and, therefore, the scale of these two different categories were uniform. In the year 1973 the revision in the pay scale of the teaching staff was made as per the recommendation of the U.G.C. wherein it had agreed to bear the extra costs on that count. The respondents further pointed out that, no doubt, the Resolution of the University in its Executive Council Meeting dated 5.8.1978 was specifically based on the question which was raised by one Professor Shri B. T. Deshmukh, the then Member of the Executive Council of the University. However, it is the stand of the respondents that in fact there was no draft resolution on which the Executive Council had taken a decision. It is the contention that unless there was appropriate amendment to the Statute in that respect, till then it was impossible to have given effect to the Resolution. As is clear from the record subsequently the matter remained rested for a considerable long time. Pertinent it is to observe at this stage that Section 77-B of the Nagpur University Act. 1974, was widely amended on August. 11, 1978 and the amended provision was made effective from the same date. It. is also necessary to note that Section 77-A was also amended by which the power to prescribe Standard Code for employees of the Universities and affiliated Colleges and recognized Institutions vested in the Government and the final control by the State Government in the said matter was brought into effect. The respondents further contended that there is a basic difference in the categories of teaching staff and the non-teaching staff and, therefore, according to the respondents it was incorrect on the part of the petitioners to have claimed parity in the pay scale.

9. According to the respondents, these are two different categories of employees which cannot be equated. Respondents further specifically pointed out that while revising the pay scale of the teaching staff in accordance with the G. R. dated 25.10.1977, the matter was considered thoroughly by the authority concerned, very many points were highlighted in the same and only in that background necessary decision was taken by the U.G.C. to give a revised pay scale to the teaching staff. However, according to the respondents that could not be the case as regards non-teaching staff and the claim made by the petitioners, therefore, was not worth granting. The sum and substance of the defence of the respondent Nos. 1 and 2 is that the petitioners could not be equated with their alleged counter part in the teaching staff so far as regards the pay scale was concerned. It is further the say of these respondent Nos. 1 and 2 that unless and until there is a green signal from the respondent i.e. the State Government, till then University was not competent to give effect to the alleged Resolution of the Executive Council. According to these respondents it was not enough for the respondent No. 3 to have stated that the burden would be borne by the respondent No. 3 if the pay scale of the teaching staff is revised. Ultimately as pointed out earlier, unless and until appropriate decision is taken by the State Government and approval is accorded, till then it was not possible for the respondent No. 3 to revise the pay scale of the non-teaching staff as claimed in the Petition.

10. In short, the controversy as is brought to the judicial decision before this Court will have to be resolved or will have to be sorted out taking into consideration the various relevant provisions of the Nagpur University Act, its Statute and its resolutions along with other relevant provisions of the relevant other Acts, Rules and Regulations.

11. Nagpur University Act, 1974 (hereinafter referred to as the "Act" for the purpose of brevity) was passed in the year 1974 and came into effect from 21.5.1974. Section 4 of the Act deals with the power of the University. Subsection (43) of Section 4 of the Act narrated amongst other powers of the University to do all such other acts and things as may be necessary for or incidental or conducive to the attainment of all or any of its objects. Section 4 gives general scope of the powers of the University, Sub-sections (1), (3), (4) and (5) thereof refer to the fields in which the respondent- University is supposed to function and has to function. As regards the activities pertaining to the teaching are concerned, the powers of the University in that respect are broadly given in Sub-sections (6), (7) and (8) of Section 4. Needless it is to say that the University is also empowered to select administrative, ministerial and other posts and to make appointments thereof including that of prescribing of the qualifications and other terms and conditions of these services of the administrative staff. Thus if a thorough review is taken of this Section 4 of the Act, there hardly remains any doubt that Sub-section (43) of Section 4 referred to above is in the nature of enabling clause.

12. Section 23 in Chapter IV deals with the authorities of the University. Executive Council of the University is referred to in this Section 23. As per Sub-section (1) of Section 23 of the Act, Executive Council is the Principal Executive Authority of the respondent No. 3 - University. The Constitution of this Executive Council is given in various sub-sections of Section 23(1). We are more concerned with the powers and duties of the Executive Council which are given in detail in Section 24 of the Act. Sub-section (1) of Section 24 empowers the Executive Council to exercise very many powers referred to in that section and also to perform all necessary duties referred to therein. Executive Council derives its powers from Clause (xxix) of Sub-section (1) of Section 24. To appoint Officers and other employees of the University, to prescribe their qualifications, fix their emoluments, define the terms and conditions of their service and discipline and their duties are those powers. Petitioners are trying to project their claim precisely on the pedestal of this Clause (xxix), contending that it was well with the competence of the Executive Council to deal with the subject of fixation of scale or emoluments of the non-teaching staff. It is their contention that in pursuance of this provision, once the Executive Council having passed the Resolution dated 5.8.78, the same should have been given effect to immediately or earliest possible.

13. Petitioners' grievance is that the respondents exhibited their total lack of interest in the matter which has prejudicially affected the petitioners. As to whether any Ordinance on the subject has been issued by the University or not, is not. brought to the notice of the Court by either of the parties. However, due importance will have to be given to the other relevant provisions in the Act and to be precise to the provisions in Chapter XI thereof. This Chapter deals with the finance matter of the University. Section 70 under this Chapter deals with the establishment of a fund which is known as University fund. Section 71 deals with the annual accounts and financial estimates and the matters concerning thereto. It is also clear from this provision that in accordance with Section 71 of the Act, the annual accounts and financial estimates are to be prepared by the University and in accordance with the provision of Sub-section (1) of Section 71 of the Act, it is for the Finance Committee under the directions of the Executive Council to prepare the accounts. These accounts are to be prepared, they are also required to be got audited through the Auditors appointed by the Senate of the University. Sub-section (2) of Section 71 directs these audited accounts to be published by the Executive Council and copies thereof together with the audited report are to be placed before the Senate. Sub-section (4) of Section 71 of the Act requires that the financial estimates as approved by the Executive Council are to be submitted to the Senate which has to consider and pass the same with modifications if it is thought fit. Section 72 requires that the annual reports to be prepared under the directions of the Executive Council, and they are to be submitted to the Senate and the Senate in its turn by passing appropriate resolution in that respect would forward the same to the Executive Council for the due consideration of the Executive Council and for other appropriate action which the Executive Council may think fit. From the reading of the above said provisions, it is clear that Executive Council could be said to be answerable and accountable to the Senate, if the Executive Council fails to take any action on any resolution approved by the Senate. The sum and substance of this provision, in our opinion, is enough to suggest that the financial matters of the University and the control thereon is of the Executive Council and the Senate, which are the two statutory bodies under the Act. So far as regards these provisions are concerned, prima facie impression can be gathered that but for these two bodies referred to above, i.e. the Executive Council and the Senate, there is no third body or any other outside agency who can be said to have control over these matters of finance of the University. Petitioners heavily relied on these provisions to suggest that once a resolution is passed by the Executive Council, then it was not. open for any other body either in the University or any other foreign body to have its say in such matters and, therefore, according to the petitioners even the respondent No. 1 - State has no say whatsoever in this matter. However, in our opinion, the whole approach of the petitioners towards the problem is totally myopic. Certain other relevant provisions of the Act will have to be taken into consideration while taking a judicious decision in the present Petition.

14. Section 19 of the Act deals with the very many authorities of the University and the Senate of the University is listed at Sr. No. (i) as one of the authorities. The list as is given in Section 19 appeared to be in descending order. Executive Council is shown at Sr. No. (ii) and Academic Council at Sr. No. (iii). The rest of the authorities are shown one after another therein. For the purposes of the present Petition, we are concerned with the first two authorities i.e. the Senate and the Executive Council. Section 20 Sub-section (1) specifically states that the Senate shall be the principal authority for all financial estimates and budgetary appropriations, and the same shall consist of the members as are given in that section. This, therefore, clearly leads to the conclusion that the Senate is the principal authority for all financial and budgetary appropriations. It is, therefore, elear that before any proposal, decision or order of the Executive Council takes effect and that too pertaining

(xi) consider the annual accounts of the University and the audit report on such accounts, and pass such resolution thereon as it thinks fit;"

(xii) consider the annual financial estimates placed before it by the Executive Council, and pass such estimates in part or in whole, or with such modifications, if any, as it thinks fit.

These provisions clearly indicate the superior powers of the Senate in the matter concerning the finances of the University. The present Petition no doubt has a direct connection with the financial matters of the University as it relates to the fixation of the pay scales of its employees. Section 77-B of the Act is amended provision which has come into effect on 11.8.78. This amended provision Section 77-B deals with the financial control of the State Government over the University. Section 77-B reads as under :-

77-B. Without the prior approval of the State Government, or an office authorised by it. in this behalf, the University shall not-

(a) create any new posts of Officers, Teachers or other employees;

(b) revise the pay, allowances, post retirement benefits and other benefits of its Officers, Teachers and other employees;

(c) grant and special pay, allowance or other extra remuneration of any description whatsoever, including ex gratia payment of other benefits having financial implications, to any of its Officers, Teachers and other employees:

(d) divert any earmarked funds for any other purpose: or

(e) incur any expenditure on any development work.

15. In view of the abovesaid provision, Clauses (b) and (c) are relevant for our purposes. Clause (b) deals with the revision of pay, allowances, post retirement benefits and other benefits of its Officers, Teachers and other employees, whereas Clause (c) deals with the grant of special pay, allowance or other extra remuneration of any description etc. Keeping in view this amended provision, it is no doubt clear that there is a complete control of the Government over the financial matters referred to in that section.

16. In the present Petition, none of the parties have placed on the record any document indicating that the Resolution passed by the Executive Council was at any point of time placed before the Senate for its approval. On the contrary, we after having scanned the complete annexures annexed with the petition as also with the Return, we find that majority of the documents annexed therewith are either of the resolutions passed by the Executive Council Meeting from time to time reiterating about very same decision and the rest of the documents are nothing but the various correspondence entered into by the University, the Vice-Chancellor and the petitioners either amongst themselves or with the State Government. None of these documents, in our opinion, therefore, could be of any help for deciding the present matter except the reflection of the demand being made constantly by the petitioners. In our view, therefore, the petition in fact can be disposed of on this very short point that the matter was never placed before the Senate and there was no decision from the Senate so as to enable the respondent Government to take appropriate steps in the matter.

17. Assuming for the sake of arguments that the University was ready to sustain this additional burden of fixation of the pay scale of the petitioners equivalent to that of the respective posts to which the petitioners have made a reference in the Petition, however, since the matter directly relates to the financial burden on the University and even if University is ready and willing to sustain the same, it is of no consequence in view of the amended provision of Section 77-B of the Act.

18. The another aspect to be seen in the matter is, the petitioners are absolutely wrong in equating themselves with the teaching staff of the University. Petitioners in fact appeared to have used the word 'status' in their petition at very many places without exactly understanding the clear meaning thereof.

In this respect it is worth to note that the teaching and non-teaching posts are absolutely of different cadres and cadre denotes the strength of the service or a part of service sanctioned on a separate unit. In our opinion, therefore, the petitioners appeared to have been labouring totally under wrong notion.

19. The decision on the basis of which much hue and cry is being made by the petitioners, was nothing but an instant reaction by the Committee Members of the Executive Council on the subject of revision of pay scale which was raised by one of its Members Shri B.T. Deshmukh. A pointed question was put to the learned Counsel for the petitioners as to whether was it a matter on agenda and whether it was a subject matter to be discussed after giving due notice to all the members in advance. However, Shri Agnihotri the learned Counsel appearing on behalf of the petitioners could not answer the same. He also could not answer the query of the Court as to whether was this decision placed before the Senate and approved by it. In such circumstances, we find it not difficult to hold that the decision was never carried to the Senate for the opinion of the Senate thereon which is the highest body of the University much less pertaining to the financial matters.

20. A feeble attempt is made by Shri Agnihotri to suggest that the case of the present petitioners is not covered by the provisions of Section 77-B of the Act. He wanted to suggest that the alleged Resolution is dated 5.8.78 and the Section 77-B is amended on 11.8.78. According to Shri Agnihotri since the Resolution was passed prior to the amendment, amendment cannot be given effect to in the present matter. This argument of Shri Agnihotri is good for rejecting only. The resolution was never passed or approved by the Senate and the matter in fact was yet could be said to have been pending before the University authorities itself and before any decision could be taken by the Senate, the amendment had come into effect. We, therefore, see no substance in the argument of Shri Agnihotri on this point.

21. In our opinion, the case of the petitioners claiming parity of scale with the teaching staff is also misconceived. We fail to understand as to how the petitioners can claim such parity. If we look at the nature of the duties to be performed by the petitioners and the duties to be performed by the members of the teaching staff, we see that the duties, responsibilities and qualifications for the posts of Registrar, Deputy Registrar and Assistant Registrar appeared to be quite different from that of the duties, responsibilities and qualifications of the teaching staff. Petitioners belong to the administrative cadre while teaching staff belongs to professional/academic cadre. It is also to be noted that the University Grants Commission has not simply revised the scale of the teaching staff, but it has also laid down specific essential qualifications for those posts which cannot be lightly overlooked. In view of this, we hardly see any point in this argument of Shri Agnihotri. The respondent No. 3 - University though not whole heartedly but with some reservations appeared to have supported the petitioners and it is clear from the stand taken by the University which is as under :-

The new Section 77-B introduced financial control of the State Government on the University. Since the new amendment was effected within a period of week from passing of the Resolution of 5.8.1978, this respondent - University thought it proper to seek approval of the State Government for implementation of the Resolution because it involves huge financial burden on the University. So also, it would create disparities between the administrative employees, that is officers and non-officers in respect of date of revision of pay scales.

From these observations in the Return in para 1 thereof, it is clear that merely because Section 77-B was brought into effect by way of amendment immediately after passing of the Resolution dated 5.8.78 by the Executive Council, to be on safer side, University appears to have sought for the approval of the Government. In fact, in our opinion, the University itself appeared to have committed an error in straightway referring the matter for approval to the respondent-Government even without, getting the same first approved by the Senate. Even otherwise, though hesitatingly the University referred the point to the Government, the decision of such a reference for approval appeared to be a correct step taken by the University though the point of reference itself was defective because of non-approval of the Senate thereto.

22. In the circumstances, in view of what we have observed above, we are of the clear view that the petitioners are not entitled for any of the reliefs they have asked for in this Petition. There is no merit whatsoever in the Petition. The Petition stands dismissed. Rule discharged. However, in the circumstances of the case, no orders as to costs.