Ajay Kumar Sinha And Ors. vs Indira Gandhi National Open ...
1992 Latest Caselaw 411 Del

JUDGMENT

D.P. Wadhwa, J.

(1) The University called the Indira Gandhi National Open University (for short 'the University') has been constituted under an Act of Parliament "The Indira Gandhi National Open University Act, 1985". The First Schedule to the Act contains the objects of the University and the Second Schedule the statutes of the University. The petitioners numbering seven filed tills petition against the University claiming various reliefs. They said that they were appointed as full time consultants by the University when in fact they were lecturers and performing the duties of lecturers as such and that the University, therefore, could not terminate their services. They sought a writ, order or any other direction in the nature of:

(I)Prohibition restraining the respondent University from in any manner terminating the services of the petitioners.

(II)Declaration, thereby declaring that the petitioners are the permanent lecturers of the respondent University.

(III)Mandamus thereby directing the respondent University to place/ fix the scales of pay in respect of the petitioners as envisaged by the Statutes of the University framed under the provisions of Section 24 of the Indira 'Gandhi National Open University Act,1985.

(IV)Prohibition restraining the respondent University from in any manner conducting interviews or otherwise initiating selection process in respect of Lecturers or other .Academic staff in replacement of the petitioners.

(V)Certiorari thereby quashing the interviews conducted by the Respondent University on March 30, 1992 and restraining the respondent University from giving effect to selections pursuant to the said interviews.

(VI)Mandamus directing the respondent University to pay to the petitioners the differential of amounts payable as and by way of salaries, allowances, incentives and other monies for the post of lecturer, and the amounts actually paid to the petitioners since the date of appointment of the respective person.

(VII)Mandamus directing the respondent University to pay to the petitioners, in addition to Basic Pay, all allowances, incentives, benefits and other entitlements attached to the post of Lecturer of the respondent University, with effect from the date of regularisation.

These are, thus, the prayers made in the petition. A notice to show cause was issued to the University as to why rule nisi be not issued. It filed its return questioning the maintainability of the petition itself and said its action was within the provisions of the Act and the statutes there under.

(2) To understand the real controversy it will be appropriate to refer to certain provisions of the Act and the statutes. "Teacher" under clause (p)of Section 2 means Professors, Readers, Lecturers and such other persons as may be designated as such by the Ordinances for imparting instruction in the University or for giving guidance or rendering assistance to students for pursuing any course of study of-the University. No ordinance has so far been issued by the University to designate any other person as teacher. An "employee" under clause (f) of this section means any person appointed by the University, and includes teachers and other academic staff of the University. Section 5 gives powers of the University and clauses (vi) and (xxii) of Sub-section (1) are as under:

(VI)to institute professorships, readerships, lectureships and other academic positions necessary for imparting instruction or for preparing educational material or for conducting other academic activities, including guidance, designing and delivery of course and evaluation of the work done by the students, and to appoint persons to such professorships, readerships, lectureships and other academic positions;

(XXII)to appoint, either on contract or otherwise, visiting Professors, Emeritus Professors, Consultants, fellows, scholars, artists, course writers and such other persons who may contribute to the advancement of the objects of the University; Under Sub-section (3) of Section 10 the Vice-Chancellor of the University may, if he is of the opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under this Act and shall report to such authority the action taken by him on such matter. There are two provisos to this sub-section which are not relevant for our purposes. Under clause (d) of Section 24, subject to the provisions of the Act, the Statutes map provide for the appointment of teachers and other employees of the University, their emoluments and other conditions of service. Under clause (4) of 2nd Statute the Vice-Chancellor shall exercise control over the affairs of the University and shall give effect to the decisions of all the authorities of the University. Under clause (9) of this Statute he is also authorised " to make short-term appointments" for a period not exceeding six months at a time of such persons as may be considered necessary for the functioning of the University. One of the principal authorities of the University is the Board of Management. Under Statute 7, the Board of Management has the power to approve the appointment of such professors, readers, lecturers and other teachers and academic staff as may be necessary on the recommendations of the selection committees constituted for the purpose. Under this statute, the Board of Management has also the power to provide for the appointment of visiting professors, emeritus professors, fellows, artists and writers and determine the terms and conditions of such appointments. The Board of Management has also power to prescribe qualifications for teachers and other academic staff. It is also empowered to approve appointments to temporary vacancies for any academic staff. Under Statute 12, various selection committees for making recommendations to the Board of Management for appointment to the posts of professors, readers, lecturers and other academic staff and heads of institutions maintained by the University are constituted. Each selection committee for the appointment to the post of lecturers shall consists of the following members, namely: (A)the Vice-Chancellor; (b) a Pro-Vice-Chancellor or the Director of the School concerned nominated by the Vice-Chancellor; (c) a person nominated by the Visitor; and (d) three experts not connected with the University to be nominated by the Vice-Chancellor in such manner as may he-specified in the Ordinances.

(3) University has not issued any ordinance as to how the Vice- Chancellor is to nominate these three experts. It was, however, not disputed before us that these three experts should not be connected with the University. From the Act and the Statutes one finds that running of the University is quite a complex affair. There are various checks and various authorities. Apart from the Board of Management, the other authorities are : the Academic Council, the Planning Board, the Board of Recognition, the Schools of Studies and the Finance Committee. Statutes can also declare such other authorities to be authorities of the University. Functions of all these authorities have been specified. For the purpose of decision of this writ petition it is not necessary to refer to other provisions of the Act and the Statutes.

(4) Reference may, however, be made to extracts from the proceedings of the Establishment Committee approved by the Board of Management on 18 February, 1991. In this policy and guidelines for appointment of consultants were fixed and it was specified that no consultant should be appointed on a full time basis beyond a period of 24 months. All appointments of consultants beyond six months are to be considered in the initial stage by a committee appointed by the Vice-Chancellor. This committee is also to consider all proposals for extension of consultancy assignments beyond one year and make appropriate recommendations to the Vice-Chancellor. Then there is also an office order dated 23 August 1989 of the University dealing with the appointment of consultants for performance of various functions. In this Board of Management made various recommendations and one of these was that consultants should not be treated as members of staff of the University and should not normally be engaged against regular post for which provision is made in the budget and that in respect of certain sensitive areas like examination and evaluation, while consultancy assignments could be envisaged for system development etc., no Consultant should be engaged for work relating to the actual conduct of examinations.

(5) We have now to examine the case of the petitioners in the background of the provision of law and the policy and guidelines. To understand the case of the petitioners we wanted to examine the facts of one petitioner. The petitioners said that the case of the second petitioner Indu Prakash Singh would be appropriate.

(6) The second petitioner was offered association with the University as full time consultant for a period of six months by order dated 6 September, 1990. An office order appointing him as such was issued on 13 September, 1990. It would be advantageous to reproduce this letter : F.No.-TA/l/39/90/4756 Dated - September 13, 1990 Office Order NO. 521 The Vice Chancellor is pleased to appoint Dr. I.P. Singh as a Full-time Consultant in Sociology for a period of six months with effect from 11.9.1990. During this period Dr. I.P. Singh will help the school of Social Sciences in the process of preparation of course material in Sociology for Bachelor's Degree Programme. During this period the specific tasks that are likely to be assigned to him are :

(I)Preparation of course material in Social Stratification for the course (ESO-4) consisting of 24-credits in Sociology. (ii) Writing units of the course. (iii) Vetting the Hindi translation of the course. (iv) Editing the material of the course. (v) Helping in the production of audio/video cassettes in regard to the course. (vi) Any other work that could be assigned by the Director, School of Social Sciences.

DR.I.P. Singh will be paid a consolidated fee of Rs. 3,000.00 per month. sd/- (G.S. VIJAIPAL) Asstt. Registrar."

Before the expiry of six months period by another office order dated 11 March 1991 services' of the second petitioner as consultant (full time) were extended for a further period of six months from that date. Then again by office order dated 11 October 1991 the services were extended for another period of six months. Then by order dated 17 March 1992 services of the second petitioner were extended from Ii March 1992 to 30 April 1992 and finally during the pendency of.this writ petition to 31 May 1992. The terms and conditions of the appointment of second petitioner remained always the same.

(7) "CONSULTANT" or "Consultant (full time)" has not been defined in the Act. Ordinary dictionary meaning of the consultant is one who consults; one who offers business, professional, or expert advice for a fee (New Webester's Dictionary). The Concise Oxford Dictionary defines the consultant as one who consults; consulting physician. "Consultant" in Collins Cobuild Dictionary is a person who gives expert advice to people who need professional help. Now if we read the provision regarding appointment of consultants with those of visiting professors, emeritus professors, fellows, scholars, etc., it cannot be said that any one of the petitioners would fall in the category of consultant as given in clause (xxii) of Sub-section (1) of Section 5 of the Act. Thus, the petitioners we find are basically course writers which also finds mention in clause (xxii). The nomenclature given to course writers as full time consultants is, however, not material for our purposes. For the petitioners to contend that they be declared and absorbed as lecturers of the University, they have to show that their appointment is as per the provisions of the Act and the Statutes. We have already set out the provisions for appointment of lecturers in the University. The petitioners, therefore, cannot claim themselves to be lecturers and they cannot claim any .right to continue as consultants for all time to come. Prayers (i), (ii), (iii), (iv), (vi) and (vii) would, therefore, fail.

(8) The petitioners also appeared , before the selection committee. Excepting one or two petitioners, interview was conducted on 30 March, 1992, and regarding others during the pendency of the writ petition. They contend that the selection committee was not properly constituted. They say that some or all of the experts who were nominated by the Vice-Chancellor in terms of Statute 12 were not those not connected with the University. We have heard the parties on this submission and we are of the opinion that it raises a serious issue which needs examination. During the hearing of this petition the petitioners also filed an application seeking to amend the petition and to implead the members of the selection committee who, they say, were not qualified and also the candidates who were selected as lecturers.

(9) We will, therefore, issue Rule D.B. confined to prayer (v): Liberty is granted to the petitioners to file an amended writ petition adding parties to the writ petition and challenging the interviews conducted on 30 March 1992 and interviews affecting the petitioners during the pendency of the writ petition. Amended writ petition may be filed within ten days with copy to Counsel for the respondent who shall file the counter-affidavit within two weeks of receiving the amended writ petition. Rejoinder thereto shall be filed before the date fixed.

(10) No doubt, we have limited the rule only to one prayer and have held that other prayers of the petitioners were not legally sustainable. The fact, however, remains that petitioner have put in two years in the University. There is no complaint against their work. They are qualified young men and women and today they are without any job. The work of the University is expanding and we thought that they could be appropriately employed with the University. We tried our best to see if they could some how be adjusted and we have appreciated the efforts put in by Mr. Altaf Ahmed, Additional Solicitor General of India, who appeared for the University, towards this end. We still hope that in spite of pendency of the writ petition and the arguments that have gone the University will still endeavor to give proper employment to the petitioners. Their careers should not be marred at this stage. Jobs are hard to come by and after having put In two years of their best life in the University the petitioners today find themselves without any job which may well lead to frustration. It should be the attempt of everyone of us to avoid such a situation. Though the matter stands adjourned we have still hope that the controversy can be amicably resolved. University should make another effort towards this end. C.Ms. 2991/92 and 4157/92 are, however, dismissed.

(11) Adjourned to 18 August, 1992. To be listed in the category of admission matters for final disposal.

(12) A copy of this order will be given to the petitioners and Counsel for the respondent. . -