Uttarakhand High Court
Dr. Vinod Kumar vs Secretary on 14 March, 2024
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
JUDGMENT
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI
AND
HON'BLE SRI JUSTICE PANKAJ PUROHIT
WRIT PETITION (S/B) No. 350 OF 2023
Dr. Vinod Kumar. ...Petitioner
Vs.
Secretary, Department of Agriculture
and Farmers Welfare, Government of
Uttarakhand, Dehradun & others. ...Respondents
WITH
WRIT PETITION (S/B) No. 321 OF 2023
WRIT PETITION (S/B) No. 345 OF 2023
WRIT PETITION (S/B) No. 351 OF 2023
WRIT PETITION (S/B) No. 352 OF 2023
WRIT PETITION (S/B) No. 353 OF 2023
Counsel for the petitioners : Mr. C.D. Bahuguna, Senior Advocate,
assisted by Mr. Ravindra S. Rawat,
Advocate with Mr. Anup Kumar Verma,
Advocate.
Counsel for the respondent No. 1 : Mr. S.N. Babulkar, learned Advocate
General, Mr. Amarendra Pratap Singh,
Additional Advocate General and Mr. C.S.
Rawat, Chief Standing Counsel and for
the State of Uttarakhand.
Counsel for the respondent Nos.2 to 6 : Mr. S.S. Lingwal, Advocate.
Reserved on :01.03.2024
Delivered on :14.03.2024
JUDGMENT :
(per Sri Manoj Kumar Tiwari, J.)
Since common questions of law and fact are
involved in these writ petitions, therefore they were heard
together and are being decided by a common judgment.
However, for the sake of brevity, facts of Writ Petition
(S/B) No.350 of 2023 alone are being considered and
discussed.
2. Dr. Vinod Kumar (petitioner in Writ Petition
(S/B) No.350 of 2023) was appointed in G.B. Pant
University of Agriculture & Technology, Pantnagar
(hereinafter referred to as 'the University') on the post of
Senior Statistician/Senior Research Officer, Statistics
(General Budget), vide order dated 22.10.2007 issued by
Chief Personnel Officer on behalf of Vice-Chancellor. He
was given promotion to the post of Professor, Statistics
vide order dated 20.04.2015. Age of superannuation of
Teachers serving in the University was increased from 60
years to 65 years and he was given benefit of said
decision and was permitted to continue in service even
after completing 60 years of age.
3. In this writ petition, he has challenged the
order dated 04.07.2023 passed by Secretary, Department
of Agriculture, Government of Uttarakhand, which
provided that employees, other than Teacher, who are
continuing in service after completing 60 years of age,
shall be retired forthwith. Pursuant to said order, Chief
Personnel Officer of the University retired Dr Vinod Kumar
w.e.f. 04.07.2023, vide order dated 12.07.2023. He has
challenged these two orders in this writ petition.
Substantive reliefs claimed in the writ petition are
reproduced below:
"I. Issue a writ, order or direction in the nature of
Certiorari summoning the records from G.B. Pant
University, Pantnagar; and quashing the impugned
orders 04-07-2023 and 12-07-2023, issued by
respondent nos.1 & 2, contained in Annexure-1 & 2 to
this petition.
II. Issue a writ, order or direction in the nature of
Mandamus commanding the respondent nos. 1 to 6
not to remove the petitioner from the post of
Professor, Department of Mathematics, Statistics &
Computer Science pursuant to the impugned orders
contained in Annexure-1 & 2 to this petition.
III. Issue a writ, order or direction in the nature of
Mandamus commanding the respondent nos.1 to 6 not
to deprive the petitioner of any service benefits
pursuant to the impugned orders, contained in
Annexure-1 & 2 to this petition."
4. The sole question, which falls for consideration
in this writ petition, is whether petitioner is a 'Teacher' or
not. Anyone, who is a Teacher as per the definition given
in the University Act or is recognized as Teacher, in terms
of Statutes of the University, is entitled to continue in
service upto 65 years; while, age of superannuation of
employees other than Teacher, is 60 years. The
University was established under a State Legislation
known as the U.P. Krishi Evam Prodyogik Vishwavidyalaya
Adhiniyam, 1958. Section 2(k) of the said Act defines
'Teacher' as follows:
"2(k) "Teacher" means a person appointed or
recognized by the University for the purpose of
imparting instruction or conducting and guiding
research or extension programmes and includes a
person who may be declared by the statutes of be a
teacher; and"
5. Section 4 of the aforesaid Act enumerates the
objects of the University, which include making provision
for education of the rural people in agriculture, rural
industry, business and other allied subjects; furthering
the prosecution of research, particularly in agriculture and
other allied sciences and undertaking field and extension
programmes.
6. Section 6 of the Act enumerates the powers of
the University, which inter alia are to make provision for
research and for the advancement and dissemination of
knowledge and for extension programmes; to institute
teaching, research and extension posts required by the
University and to appoint persons to such posts; to create
administrative, ministerial and other necessary posts and
to make appointments thereto.
7. Chapter XII of the Statutes of the University
deals with classification of teachers of the University,
which reads as under:
"Section 28 (c)
1. The Board of Management shall from time to time
determine after considering the recommendation of
Academic Council in this behalf, the classification of
the teaching staff of the University with appropriate
designations, i.e., Professors, Associate Professors/
Readers, Assistant Professors/Lecturers and the
like. The Board shall also have power to alter or
modify such classification in any particular case.
2. The teachers of the University shall be employed on
a whole-time basis on the scales of pay specified by
the Board provided that the proportion of time of
teachers to be devoted to teaching, research and
extension or administrative duties should be specified
in their contract of employment."
8. Clause 4(d) of Chapter XIII of the Statutes of
the University lays down the composition of the Selection
Committee for appointment of Professor, Associate
Professor, Assistant Professor or Teacher.
9. The University issued an Employment Notice
No.A-13/2006, inviting applications from eligible persons
for appointment to various teaching and non-teaching
posts, including the post of Senior Statistician/SRO
Statistics (Gen. Budget). The said advertisement
indicated that post of Senior Research Officer is
equivalent to the post of Associate Professor and both
carry pay scale of ₹12,000-18,300; while, post of
Assistant Professor was in the scale of ₹8,000-13,500.
Petitioner applied for the post of Senior Statistician/SRO
Statistics (Gen. Budget), pursuant to the said
advertisement. The Selection Committee considered
candidature of all candidates, who applied pursuant to the
advertisement and, on the recommendation of Selection
Committee, petitioner was appointed as Senior
Statistician/SRO Statistics (Gen. Budget) in the pay scale
of ₹12,000-18,300 vide order dated 12.10.2007. In
clause 3 of the appointment order, it was mentioned that
petitioner will have to abide by regulations on code of
conduct for Teachers of the University.
10. In the writ petition, it is pleaded that, on the
recommendation of Board of Management of the
University, State Government granted approval for
creation of certain research posts and petitioner has been
appointed against one such post of General Budget under
the Directorate of Research. It is further stated that post
of Senior Statistician/SRO Statistics (Gen. Budget) is a
teaching post and petitioner was selected by a Selection
Committee constituted under clause 4(d) of Chapter XIII
of the Statutes of the University, which is meant for
Teaching Positions only. The order dated 20.04.2015,
whereby petitioner was promoted from the post of SRO
Statistics to the post of Professor (Statistics) in Pay Band-
IV (₹37,400-67,000 and A.G.P. ₹10,000), has been
enclosed as Annexure No.5 to the writ petition. On the
strength of said order, it is contended that only a
Teacher, who is designated as Associate Professor, can be
promoted as Professor, therefore, the stand taken by the
State Government that petitioner is not a Teacher, cannot
be sustained.
11. Learned Senior Counsel for the petitioner
submits that, even before his promotion to the post of
Professor (Statistics), petitioner was not only conducting
and guiding research, but he was imparting instructions
to students in classroom as any other Teacher. He
further submits that the University has recognized
petitioner as Teacher ever since he was appointed in 2007
and petitioner was paid U.G.C. pay scale with academic
grade pay, which is payable only to Teachers serving in a
University, therefore, according to him, order passed by
the State Government on 04.07.2023, is bad in law,
which amounts to encroachment in the autonomy of the
University in academic field, on which decision taken by
the University is final.
12. Learned Senior Counsel has drawn attention of
this Court to provision contained in Section 4(b & c) of
the University Act for contending that furthering the
prosecution of research, particularly in agriculture is one
of the object of establishing the University, therefore,
according to him, research cannot be segregated from
teaching and it is part and parcel of teaching. Learned
Senior Counsel has also referred to provision contained in
sub-section (8) and sub-section (13) of Section 6 of the
University Act, which enumerate the powers of the
University. Learned Senior Counsel for the petitioner
submits that Teacher's Association of the University, of
which petitioner is also a member, filed Writ Petition
(S/B) No.52 of 2010, claiming benefit of the decision
taken by University Grants Commission regarding age of
superannuation of Teachers. The said writ petition was
allowed by Coordinate Bench of this Court vide judgment
dated 08.12.2011 and the State Government was
directed to amend the Statutes of G.B. Pant University to
increase age of superannuation of members of teaching
staff. Operative portion of the said judgment is
reproduced below:
"10. We, accordingly, issue a mandamus, directing
the State Government to alter the Statutes pertaining
to Govind Ballabh Pant University, Pant Nagar and all
other Universities and thereby, to increase the age of
superannuation of the members of teaching staff of
Govind Ballabh Pant University, Pant Nagar and all
other Universities, in respect whereof the State
Government has administrative / otherwise control,
with effect from the date of presentation of the writ
petition. The above exercise must be completed as
quickly as possible, but not later that one month from
today. It is declared that whoever was in service as on
the date of presentation of the writ petition in Govind
Ballabh Pant University, Pant Nagar and all other
Universities under the administrative / otherwise
control of the State Government, shall continue to
serve the said University / Universities until they
attain the age of 65 years."
13. It is not in dispute that in compliance of the
judgment rendered in WPSB No.52 of 2010, State
Government issued an order dated 20.09.2013, whereby
age of superannuation of Teachers serving in the G.B.
Pant University of Agriculture & Technology was increased
from 60 to 65 years.
14. It is also not in dispute that petitioner was
given benefit of judgment rendered in WPSB No.52 of
2010 and the Government Order dated 20.09.2013 issued
in compliance thereof. Petitioner completed 60 years of
age in the month of March, 2021 and he would have
retired on 31.03.2021, if he was not holding a teaching
post; petitioner was permitted to continue in service
beyond 60 years of age, in terms of Government Order
dated 20.09.2013. Thus, the order dated 04.07.2023
passed by the State Government and the consequential
order issued by Chief Personnel Officer of the University
has resulted in removal of the petitioner from service.
15. Dr. M.S. Negi, Additional Chief Personnel
Officer of the University has filed a common counter
affidavit in these writ petitions, where it is stated that
petitioners were appointed as per the procedure laid down
in clause 4(d) Chapter XIII of the Statutes, which is
applicable only to Teachers. It is further stated that
petitioners were appointed against posts of General
Budget approved by the State Government and not
against a project post and further that services of all the
writ petitioners were confirmed in University service. In
paragraph no.5 of the counter affidavit, it is stated that
the University is employing staff since beginning to impart
education and to undertake research and extension in
agriculture and further that, in the University, research
and extension in agricultural subjects has been integral
part of teaching.
16. A notification issued by Government of India,
Ministry of Education on 13.08.1975 is enclosed as
Annexure-R-2 to the counter affidavit filed by the
University, whereby U.G.C. (Fitness of Agricultural
Universities for Grants)- Rules, 1975 were notified.
Clause 2 of the said notification lays down the
preconditions, which every agricultural University must
fulfill for receiving grant from the Central Government,
U.G.C. or any other organization receiving funds from the
Central Government. University has highlighted clause
2(III) of the notification dated 13.08.1975, in its counter
affidavit, which reads as under:
"III. the State Government concerned with the
University has accepted the principle of integration of
teaching, research and extension education in the
broad area of agriculture and in pursuance of this has
agreed to transfer research, in the broad area of
agriculture within the State to the University."
17. The University in paragraph nos.9, 12, 15, 16
& 17 of its counter affidavit has made its stand clear that
petitioners are Teachers, therefore, entitled to all benefits
available to Teachers of the University. In paragraph
no.16 of the counter affidavit, University has referred to a
decision taken by its Board of Management in 182nd
meeting held on 28.05.2001 that Senior Research Officer
will be promoted to the post of Professor under Career
Advancement Scheme.
18. The stand taken by State Government in its
counter affidavit is that petitioners are not Teacher,
therefore, they are not entitled to benefit of decision
taken by the State Government, whereby age of
superannuation of University Teachers was increased
from 60 to 65 years.
19. The expression 'Teacher' is defined by Section
2(k) of U.P. Krishi Evam Prodyogik Vishwavidyalaya
Adhiniyam, 1958. Going by the said definition, a person
appointed or recognized for the purpose of conducting
and guiding research or extension programmes, is also a
Teacher. The University Grants Commission (Fitness of
Agricultural Universities for Grants) Rules, 1975, notified
by the Central Government on 13.08.1975, provide that
an agricultural University would be declared to be fit to
receive grant from the Central Government/U.G.C. only
when the State Government concerned with the
University has accepted the principle of integration of
teaching, research and extension education in the broad
area of agriculture and has also agreed to transfer
research, in the broad area of agriculture within the State
to the University. Various other provisions contained in
the said Rules cast a duty upon the State Government
and the University to integrate teaching, research and
extension education. The Board of Management, which is
the highest decision making body in the University, with
Senior Officers of the State Government, as ex-officio
member, had taken a decision in its 182nd meeting held
on 28.05.2001 that Senior Research Officer will be
promoted as Professor under Career Advancement
Scheme. Thus, the stand taken by the State Government
that petitioners are not Teacher, cannot be accepted. The
decision taken by Board of Management on 28.05.2001 is
referable to the power available to Board of Management
of the University under Chapter XII of the Statutes, as
Board of Management is competent to determine the
classification of Teaching Staff of the University with
appropriate designations and also to alter or modify such
classification in a particular case. When the Board of
Management has recognized Senior Research Officer as
eligible for promotion to the post of Professor, then it is
not open for the State Government to contend that the
post of Senior Research Officer, to which petitioner was
appointed in 2007, is not a teaching post. Benefit of
Career Advancement Scheme is available only to
Teachers and not to other employees serving in the
University. Petitioner was getting salary admissible to
Associate Professor since the date of his appointment and
the benefit of pay revisions as per U.G.C. pay scales, was
also given to him from time-to-time. It is not in dispute
that petitioner was promoted as Professor, therefore, the
view taken by the State Government that petitioner is not
a Teacher, cannot be sustained.
20. In the case of Dr. Smt. Rekha Purohit & others
Vs. G.B. Pant University of Agriculture and Technology &
others (Writ Petition (S/B) No.445 of 2014), a Coordinate
Bench of this Court, while dealing with applicability of
U.G.C. Pay Scales to Technical Assistants and Senior
Technical Assistants, relied upon a Division Bench
judgment of Hon'ble Allahabad High Court and held as
under:
"25. The Division Bench of the Allahabad High Court,
thereafter, took note of the definition of the word
'teacher' in Section 2(K) of the Uttar Pradesh Krishi
and Praudyogik Vishwa Vidyalaya Adhiniyam, 1958
(hereinafter referred to as the 1958 Act), and held
that a person appointed by the University, for the
purposes of conducting and guiding research work,
was also a teacher in the University; any person, who
may be declared by the Statute to be a teacher, was
also a teacher; the petitioners were appointed as
Technical Assistants on ad hoc basis by the
Directorate of Research under whom they had been
conducting and guiding research work; they were thus
covered under Section 2(K) of the 1958 Act; Senior
Technical Assistants / Technical Assistants and
Research Associates / Senior Research Associates,
were performing research work from the laboratory to
the field, as well as the work of teaching and
extension; the job responsibilities of Technical
Assistants were not different from Research Assistants
and Technical Assistants; and Senior Technical
Assistants, being covered under the definition of
Section 2(K) i.e. of a teacher, were entitled for the
UGC pay-scales of a teacher. The State was directed
to reconsider the petitioners' claim after taking into
consideration the observations made in the order. In
the light of the aforesaid order, of the Division Bench
of the Allahabad High Court, the petitioners, who were
appointed as Senior Technical Assistants/Technical
Assistants, must be held to teachers under Section
2(k) of the 1958 Act, and to be entitled for the UGC
pay-scales applicable to such teachers. The
petitioners' upgradation as Junior Scientists, by
proceedings dated 18.12.2008 and 18.07.2010, is in
compliance with the directives of the ICAR that the
Senior Technical Assistants, who were hitherto
working in ICAR funded research projects, should be
upgraded and appointed as Assistant
Scientists/Associate Professors. Extension of the
benefit of pay-scale of Rs. 8000-13500 to the
petitioners, by the orders dated 18.12.2008 and
18.07.2010, is because these scales were the UGC
scales of pay applicable to an Associate Professor of
the University and the directives of ICAR in its
proceedings dated 20.04.1993, to the SAUs to adjust
the unadjusted Senior Technical Assistants upgrading
them as Assistant Scientists/Assistant Professors,
were because the UGC pay-scales were those
applicable to these upgraded posts. Consequently, in
terms of the aforesaid order of the Division Bench of
the Allahabad High Court, the petitioners are entitled
to be paid the enhanced pay-scale of Rs. 8000-13500
which is the UGC pay-scales applicable to
Assistant/Junior Scientists/Assistant Professors."
21. It is not in dispute that petitioner was
permitted to continue in service even after completing 60
years of age. If petitioner was not a Teacher, then he
would have retired on 31.03.2021, however, he served in
the University till 12.07.2023 and his services were
discontinued only when Chief Personnel Officer passed an
order pursuant to direction issued by the State
Government, on 04.07.2023. It is, thus, apparent that
petitioner was recognized as Teacher till 12.07.2023; the
Act and Statutes of the University remain unaltered and
the duties and responsibilities of the petitioner have also
not undergone any change. When everything remained
the same, then the impugned decision taken by the State
Government, declaring that petitioner is not a Teacher,
cannot be sustained. The judgment rendered by
Coordinate Bench of this Court in WPSB No.52 of 2010
provided for increase in age of superannuation only for
Teachers and the Government Order issued by the State,
pursuant to said judgment, also was applicable to
Teachers alone. Once benefit of the judgment and
Government Order was given to petitioner by treating him
to be Teacher, then the said benefit could not have been
withdrawn without providing reasonable opportunity of
hearing to the affected persons. However, neither any
notice nor opportunity of hearing was given to petitioner
before passing the impugned order dated 04.07.2023.
22. University Teachers have a status different
from Government Servants, as their conditions of service
are governed by the Act & Statutes of the concerned
University. Since Universities are autonomous bodies,
therefore, appointment/ removal of teaching and non-
teaching staff in a University is free from Government
interference. As per provision contained in Section
10(7)(b) of the University Act, Board of Management is
the Appointing Authority in respect of members of
academic and administrative staff of the University. It is
not in dispute that petitioner was appointed with the
approval of the Board of Management. Thus, the decision
to remove the member of academic or administrative
staff can be taken only by the Board of Management.
However, in the present case, decision to remove the
petitioner from service was taken by the State
Government and not the Board of Management and the
Chief Personnel Officer of the University merely complied
the directive issued by State Government by removing
the petitioner from service. A member of academic or
administrative staff serving in a University cannot be
removed from service without approval of the Board of
Management.
23. Learned counsel for the petitioner has drawn
attention of this Court to provision contained in clause
4(e) of Chapter XXV of the Statutes of the University,
which reads as under:
"(e) After confirmation, the services of an employee of
the University can be terminated only on the following
grounds:
"(1) mis-conduct including disobedience of the order
of the appropriate authority;
(2) commission of any act which in the opinion of
the Board involves moral turpitude;
(3) mis-appropriation of the funds or property of the
University;
(4) corruption;
(5) physical and mental unfitness, and
(6) Abolition of Post."
24. It is not in dispute that petitioner was a
permanent employee of the University, as his services
had been confirmed, therefore, this Court finds substance
in the contention made by learned counsel for the
petitioner that petitioner could have been removed from
service only when he was found guilty in disciplinary
enquiry or when the post was abolished. Learned counsel
for the petitioner is right in saying that the order of
removal from service passed against the petitioner is not
referable to any of the aforesaid six sub clauses of clause
4(e) of Chapter XXV of the Statutes of the University.
25. There is yet another aspect of the matter.
Petitioner is enjoying the status of a Teacher since the
date he was appointed. The advertisement issued by the
University, pursuant to which petitioner applied and was
appointed as Senior Statistician/Senior Research Officer,
Statistics (General Budget), itself shows that Senior
Research Officer and Associate Professor are equivalent
posts carrying same pay scale. Teachers serving in
University, including Associate Professor, get U.G.C. pay
scales, which are higher than pay scales admissible to
administrative and other employees serving in the
University. The State Government never raised any
objection against treating the petitioner as Teacher of the
University. In fact, the State Government permitted
petitioner to continue in service beyond 60 years,
pursuant to judgment of this Court and the Government
Order issued pursuant thereto, therefore, State
Government is now estopped from contending that
petitioner is not a Teacher.
26. In paragraph no.53 of the writ petition, it is
stated that petitioner is posted in UGC pay scale and all
service benefits, including higher pay scale under Career
Advancement Scheme as per UGC Regulations, 2010,
were made admissible to the petitioner as any other
Teacher of the University. This averment has not been
denied by the State Government in its counter affidavit.
Learned counsel for the University on the other hand
submits that petitioner was given all benefits, which are
available to a Teacher of the University.
27. The State Government, in its counter affidavit
in paragraph nos.5(viii) has referred to a judgment for
contending that there is no compulsion on the State to
accept or adopt the scheme floated by U.G.C. for
increasing age of superannuation of petitioners from 60 to
65 years. Since the State Government has taken a
conscious decision to increase the age of superannuation
of Teachers to 65 years, therefore, the State Government
cannot be permitted to go back on its decision. Thus the
said contention raised by State Government cannot be
accepted.
28. Learned counsel for the petitioner submits that
the Selection Committee, on whose recommendation
petitioner was appointed, was constituted under Clause 4
(d) of Chapter XIII of the Statute of the University, which
is applicable to Teachers. Learned counsel for the
University supports the said contention and submits that
the Selection Committee, which interviewed the
petitioner, was constituted under the said provision.
29. Learned counsel for the petitioner thus
contends that the order passed by State Government on
04.07.2023 is unsustainable, as it proceeds on the
premise that the petitioner holds a non-teaching post. He
submits that the State Government cannot take a U-turn
after treating the petitioner as Teacher all through and
giving him the benefit of extension of age of
superannuation, which was given vide Government Order
dated 20.09.2013. He further submits that the petitioner
is not a Government Servant, whose conditions of service
can be determined unilaterally by the State Government.
He further contends that petitioner is an employee of the
University, which is a statutory body, having complete
autonomy, therefore, State Government cannot
intermeddle with the affairs of the University and the
State Government has no authority to alter the status of
the petitioner, that too when the State Government itself
has extended the benefit available to Teachers, to the
petitioner. He further submits that the provisions
contained in the Act and Statute applicable to the
University have been completely ignored by the State
Government while passing the impugned order. He
further submits that the State Government cannot sit in
appeal over the decision taken by the Board of
Management, inasmuch as, Board of Management as far
back as in the year 2001 had resolved that Senior
Research Officer will be designated as Professor under
Career Advancement Scheme, which indicates that Senior
Research Officer was also holding a teaching post, as
Career Advancement Scheme is applicable to Teachers
only.
30. Per contra, Mr. S.N. Babulkar, learned Advocate
General submits that petitioner is not covered by the
definition of 'Teacher', as he was appointed as Senior
Research Officer in a Project funded by the State
Government. He further contends that the Legislature has
deliberately omitted inclusion of Senior Research Officer
in the definition of 'Teacher' under Section 2(k) of the
Act, therefore, inclusion of Senior Research Officer in the
definition by judicial interpretation would be barred by
principle of casus omissus. He further contended that
there is no decision taken by Board of Management
recognizing the post of Senior Research Officer as
Teacher, therefore, petitioner cannot claim to be a
Teacher. He further submits that even if Board of
Management has recognized the petitioner as Teacher,
then also such decision is subject to approval by the State
Government, since such approval was not taken,
therefore, petitioner cannot be treated as Teacher. He
refers to clause (z), which was added in Section 28 by an
amendment made in 2015, which reads as under:
""28(z) and the age of superannuation/retirement of
the teachers other salaried employees shall be such as
the State Government may determine from time to
time."
31. Based on clause (z) of Section 28, learned
Advocate General submits that the State Government has
exercised the power available to it under Section 28(z) for
determining the age of superannuation of the petitioner,
therefore, there is no illegality in the order impugned in
the writ petition. He also referred to clause 3(b) of
Chapter XXV of the Statute, which is extracted below:
"(b) The creation of post and pay scales of the other
employees of the University shall be such as approved
by the State Government after the concurrence of the
Finance Department from time to time."
32. The submission made by learned Advocate
General are bereft of merit. Employment Notice No. A-13-
2006 and other material brought on record reveals that
the post in question was a General Budget post,
therefore, the contention that petitioner was appointed on
a post in a Project, cannot be accepted.
33. The contention based on principle of casus omissus
is also devoid of merit, as the definition of 'Teacher' as
given in Section 2K of the University Act, includes a
person appointed by the University for the purpose of
conducting and guiding research for extension
programmes. Thus, a person, who conducts or guides
research, is also a Teacher, although it is the specific case
of the petitioner that he was also imparting instructions in
the classroom. Moreover, the Board of Management had
passed a resolution in 2001 that a Senior Research Officer
would be eligible for promotion to the post of Professor
and petitioner was in fact promoted as Professor in 2015,
which post he was holding till passing of the impugned
order, which lead to the only logical inference that he is a
Teacher.
34. The University has supported the contention of
petitioner that he was holding a Teaching post. State
Government also never questioned, grant of benefits
available to a Teacher, to the petitioner before
04.07.2023. As per University Act, Board of Management
is the highest decision making Body in the University,
which can make appointment against teaching posts. As
per Chapter XIII of the Statute of the University, the
Board of Management is Competent to determine
classification of teaching staff of the University with
appropriate designation, with power to alter or modify
such classification.
35. Since the post to which petitioner was
appointed was sanctioned by the State Government,
therefore, there was no necessity to seek approval of
State Government for classifying the said post, as a
teaching post. Moreover, such classification was done in
2001, which is reflected in the advertisement /
employment notice issued by the University pursuant to
which petitioner was appointed.
36. Reliance by learned Advocate General on
Clause (z) of Section 28 of the University Act is also
misplaced. In the said Clause, State Government can take
a policy decision regarding age of superannuation of
Teachers and other employees. However, such policy
decision has to be applicable to all employees across the
Board and not to an individual or a small group of
persons.
37. In the present case, no such policy decision
has been taken by the State Government and by the
impugned order; it has provided that some employees,
who were hitherto treated as Teacher and were permitted
to serve after 60 years of age, will not be entitled to
benefit of decision to increase the age of superannuation
available to Teachers. Thus, the impugned order is not
referable to Clause (z) of Section 28 of the University Act.
38. Even otherwise also, amendment in University
Act, whereby Clause (z) was introduced in Section 28 of
the University Act does not enable the State to decrease
the age of superannuation of petitioner, who was given
benefit of policy decision taken by the State Government
earlier. Decrease in age of superannuation of existing
employees alters their condition of service, therefore, the
age of superannuation of existing employees cannot be
altered to their prejudice, by invoking Clause (z) of
Section 28 of the University Act, which was done without
providing opportunity of hearing to them.
39. Learned Advocate General also refers to
Clause 3(b) of Chapter XXV, which reads as under:-
"(b) The creation of post and pay scales of the other
employees of the University shall be such as approved
by the State Government after the concurrence of the
Finance Department from time to time."
40. The said provision also is of no avail to the
State Government, as it is nobody's case that the post,
to which petitioner was appointed, was created without
approval of State Government or without concurrence of
the Finance Department of the State Government. Once
a post is created in the University, with the approval of
the State Government, then the Board of Management is
Competent to make appointment on such post, as per
the provision contained in the Act and Statutes. It is not
the case of State Government that the provisions,
contained in the Act and Statutes of the University, were
violated while appointing the petitioner. It is nobody's
case that pay-scale or other benefits, admissible for the
post of Senior Research Officer, were enhanced to give
undue benefit to petitioner. Approval of State
Government is needed only when the pay-scale for the
post of Senior Research Officer is upgraded.
41. It is not in dispute that petitioner was given
pay-scale admissible for the post of Associate Professor
since beginning, as per the stipulation made in the
employment notice, and subsequently, he was promoted
as Professor in terms of the decision taken by the Board
of Management, six years before petitioner's
appointment as Senior Research Officer.
42. Discussion made in the foregoing paragraphs
leads to irresistible conclusion that petitioner is a
Teacher of the University and he was given all benefits
available to a Teacher, ever since he was appointed in
the University. Thus, this Court has no hesitation in
holding that the impugned order passed by State
Government, whereby status of petitioner was altered
and he was declared to be a member of non-teaching
staff, is per se arbitrary and illegal, which cannot be
sustained in the eyes of law. The impugned order dated
04.07.2023 passed by State Government and the
consequential order dated 12.07.2023, issued by Chief
Personnel Officer of the University, are thus liable to be
set aside and are hereby set aside.
43. The writ petitions are allowed. Respondents
are directed to forthwith reinstate the petitioners in
service, with all consequential benefits.
_______ ____________
MANOJ KUMAR TIWARI, J.
______________
PANKAJ PUROHIT, J.
Arpan
