1. In All these writ petitions cardinal dispute is about age of retirement of the petitioners and parity with the teachers of the University.
2. The facts giving rise to the dispute in all these writ petitions, in brief, are as under:
3. In 1898 Dr. Mrs. Annie Besant founded a Central Hindu College near Town Hall, Varanasi with an object to impart religious and moral instructions alongwith secular eduction. The College opened on 7.7.1898 in a hired accommodation. With the passage of time, accommodation became inadequate causing shifting of College to a more spacious building in the heart of the city, i.e., Kamachha. This accommodation was provided by Sri Prabhu Narayan Singh, the then Maharaja of Banaras. The college was shifted to the new building at Kamachha in March 1899. In the meantime, it was also affiliated to Allahabad University on 6.8.1898 for courses upto F.A. Standard (Intermediate). The College was under the management and control of Board of Trustees. In the scheme of constituting a Hindu University, conceived in 1914, the College was handed over to Hindu University Society so as to found nucleus for Banaras Hindu University which was established in 1916. A notification was issued on 1.10.1917 by the Governor General of India under Section 15 of the Banaras Hindu University Act, 1915 (for short "the Act"). The Act was enacted to establish and incorporate a Teaching and Residential Hindu University at Banaras and to dissolve the Hindu University Socieity- a society registered under the Societies Registration Act, 1860 and to transfer to and vest in, the said University all property and rights then vested in the said Society. The Act received assent of Governor General on 1.10.1915 and by virtue of notification under Section 1(2) of the Act, came into force on 1.4.1916. The College which was made to run at Kamachha was shifted in August/September 1921 to a new building known as "Faculty of Arts" inside the University campus.
4. A Central Hindu School (hereinafter referred to as the School) was also founded by Mrs. Annie Besant in 1898 as a part of Central Hindu College which was also taken over by Hindu University Society in 1914. After the establishment of University under the Act, the said School was transferred to new building at Kolhua in July 1917. Later on when the College was shifted to the new building known as "Faculty of Arts" at Nagawas campus, in 1921, the School was shifted from Kolhua to the erstwhile Cetral Hindu College Building at Kamachha and again in 1949 shifted to Kolhua so as to pave way for running Intermediate Classes of Central Hindu College and the College of Science at Kamachha. The School imparted instructions upto Class XII.
5. There were two more Schools.
6. Central Hindu Girls School commenced in 1903. The Board of Trustees of Central Hindu College took over charge of management of Girls School in December 1904 and in 1914, management was taken over by the Hindu University Society. It was transferred to Hindu Girls School Society in 1918 and thereafter, by the University, placed it under the management of Central Hindu School Board. This Girls School imparts education upto Class XII.
7. The other institution is Ranvir Sanskrit Pathshala established in 1884 at Terhi Neem near Dashashwamedh Ghat, Varanasi by Dharmarth Trust of Kashmir Darbar . After establishment of Central Hindu School, the Sanskrit Vidyalaya and its management was handed over to Dr. Mrs. Annie Besant and was renamed as Ranvir Sanskrit Pathshala. In 1914 it was taken over by Hindu University Society. After establishment of Banaras Hindu University (for short "BHU") it was placed under the management of Central Hindu School Board preparing students for Praveshika Examination. In 1961, name of Pathshala was changed to Ranvir Sanskrit Vidyalaya.
8. The record show that for management of the College and Schools, different committees were appointed initially. The Vice Chancellor on 1.4.1916 appointed following committees for management of different institutions as said above:
FOR CENTRAL HINDU COLLEGE
1. The Hon'ble Dr. Sunderlal, Rai Bahadur, B.A., LL.D., C.I.E., (President)
2. The Hon'ble Pandit Madan Mohan Malviya, B.A. LL.B.
3. Rai Gyanendra Nath Chakravarti Bahadur, M.A. LL.B.
4. Mr. Bertram Keightley M.A., Bar at Law
5. The Hon'ble Tej Bahadur Sapru M.A., LL.D.
6. Rai Srish Chandra Basu Bahadur B.A., LL.B.
7. Pandit Baldev Ram Dave
8. Pandit Gokaran Nath Misra M.A., LL.B.
9. Babu Bhagavandas M.A.
10. Babu Upanedra Nath Basu B.A., LL.B.
11. Pandit Chedalal BA
12. Rai Abhaya Charan Sanyal Bahadur M.A.
13. Principal Central Hindu College (ex. officio)
14. Professor Syama Charan delinquent employee M.A.
(elected by the council on 8.4.1917)
15. Babu Jnanendranath Basu B.A. (Secretary)
16. Babu Guru Prasad Dhawan B.A. (Assistant Secretary) (elected by the council on 8.4.1917) FOR CENTRAL HINDU SCHOOL
1. Rai Gyanendra Nath Chakravarti Bahadur, M.A. LL.B.
(President)
2. The Hon'ble Pandit Madan Mohan Malviya, B.A. LL.B.
3. Pandit Baldev Ram Dave
4. Rai Krishnaji
5. Pandit Chedalal BA
6. Pandit Ram Narayan Misra, B.A.
7. Babu Chintamani Mukerji B.A.
8. The Head Master of the School (Ex officio)
9. Babu Jnanendranath Basu B.A. (Secretary)
10. Babu Guru Prasad Dhawan B.A. (Assistant Secretary) (Elected by the council on 8.4.1917) FOR RANVIRA SAMSKRIT PATHSHALA
1. Mahamahopadhyaya Pandit Shiva Kumar Shastri (President)
2. Babu Bhagwvandas, M.A.
3. Mahamahopadhyaya Dr. Ganganatha Jha, M.A., D. Litt.
4. The Hon'ble Pandit Madan Mohan Malviya, B.A. LL.B.
5. The Professor of Samskrit, Central Hindu College (Ex officio)
6. Principal, Ranavira Samskrit Pathshala (Ex officio)
7. Babu Jnanendranath Basu B.A. (Secretary)
8. Babu Guru Prasad Dhawan B.A. (Assistant Secretary) (Elected by the council on 8.4.1917)
9. The Act makes a distinction between the 'College' and 'School' and defines the term ' College' in Section 2(b) as under:
"(b) "College" means a college or teaching institution (other than a secondary, primary or infant school or pathshala) maintained by or admitted to the privileges of the University;"
10. For the purpose of the Act, the term "teacher" is also defined in Section 2(i) as under:
"(i) "teacher" means a salaried professor, reader, lecturer or tutor who imparts instruction in a Faculty of, or in a college maintained by the University and includes any other person who is declared to be a teacher by the Academic Council;"
11. Section 15 of the Act, however, reads as under:
"15 (1) The Central Hindu College, (Banaras) shall from such date as the Governor General in Council may by notification in the Gazette of India, appoint in this behalf, be deemed to be a College maintained by the University, and the University may found and maintain other Colleges and institutions including High Schools, within a radius of fifteen miles from the main temple of the University for the purposes of carrying out instruction and research.
(a) The University may also found and maintain (within or beyond the aforementioned limits) special centres and laboratories for research in Humanities, Science and Technology, Education, Medicine and other professional subjects and in other spheres of learning and knowledge.
(b) With the approval of the Academic Council and the sanction of the Visitor, and subject to the Statutes and the Ordinances the University may admit Colleges and Institutions including High Schools, within the aforementioned limits to such privileges of the University, subject to such conditions, as it thinks fit.
Provided that no new College or Institution started after the commencement of the Banaras Hindu University (Amendment) Act 1966, shall be admitted to any such privilege of the University."
12. A notification was issued under Section 15 of the Act on 1.10.1917 published in Gazette of India dated 6.10.1917 in respect of Central Hindu College and it is from this date the College became a college maintained by the University. Section 17 of the Act provides matters on which Statutes can be framed. The Statutes of the University have been framed and presently Statute 41 confers power upon Executive Council to make provisions for maintenance of the Central Hindu School and other schools which have been established in accordance with the Act, Statutes or the Regulations it reads as under:
"41. (1) The Executive Council shall make provision for the maintenance of the Central Hindu School and other schools which have been established in accordance with the Act, these Statutes or the Regulations.
(2) The management of such schools shall be in accordance with the Ordinances made in this behalf."
13. In exercise of power under Statute 41(2), several Ordinances were issued. I shall refer to relevant Ordinances a bit later. Suffice it to mention that before this Court, the earlier Ordinance is dated 3.2.1957; and the date 22nd July 19179 as substituted in 1981; and 1991 which have been placed on record.
14. Dr. Jai Nath Rai, petitioner of writ petition no. 5906 of 2006, was appointed as a Post Graduate Teacher (Physics) in Central Hindu School on 28.11.1977. Similarly the details of other petitioners are as under:
Writ Petition No. Name of the petitioner(s) Post on which appointed Name of the institution Date of appointment 7907 of 2006
1. Ram Asre Post Graduate Teacher Central Hindu School (Boys)
2. Om Prakash
-do-
-do-
3. U.P. Singh
-do-
-do-
4. Dr. S.K. Rai
-do-
-do-
5. Alok Kumar Bhattacharya Trained Graduate Teacher
-do-
6. D.N. Sharma
-do-
-do-
37725 of 2007
1. Jai Shanker Singh Post Graduate Teacher
-do-
9.7.1971
2. N.S. Telang
-do-
-do-
10.7.1972
3. Tapomoy Kumar Lahiri
-do-
-do-
1.3.1985
4. Daya Ram Trained Graduate Teacher
-do-
28.11.1972 & on 27.7.2006 as PGT
5. Daya Shanker Rai Post Graduate Teacher
-do-
6.5.1985
6. Udai Nath Singh
-do-
-do-
4.2.1985
7. Sushil Kumar Srivastava Trained Graduate Teacher
-do-
1.11.1991
8. Dr. Vidya Sagar Singh Post Graduate Teacher
-do-
5.12.1978
9. Dr. Yogendra Prasad Misra
-do-
-do-
9.10.1980
10. Ramayan Tripathi
-do-
-do-
4.2.1982
11.Smt. Ved Vali Acharya Trained Graduate Teacher
-do-
1.11.1985
12.Smt. Sheela Chaudhary
-do-
-do-
12,2,1985
13.Ashok Kr. Bhattacharya
-do-
-do-
1.7.1987
14.Shesh Dhar Tripathi
-do-
-do-
1.9.1993
15.Satish Chandra Pandey
-do-
-do-
1.9.1994
16.Lakshman Prasad Yadav Post Graduate Teacher
-do-
9.10.1991
17.Sanna Lal Maurya
-do-
-do-
16.12.1986 as TGT & 11.7.2006 as PGT
18. Hori Lal
-do-
-do-
TGT on 16.2.1985 & PGT on 10.7.2006
19.Asha Singh
-do-
-do-
1.7.1987
20. Anjana Banerjee
-do-
-do-
1.9.1977 44413 of 2006 Dr. Daya Ram Verma Assistant Teacher (TGT)
-do-
July 1971 28911 of 1993 Ashok Kumar Pathak Part Time Teacher Ranvir Sanskrit Pathshala Kamachha 1977
15. These petitioners have come up to this Court with different reliefs but the entitlement thereof would depend upon the basic question, whether the institution in which they were appointed and are working is a "college" and the petitioners are "teachers" as defined under the Act and lastly that they are at par with teachers of the University governed by general provisions of the Act and the Statute.
16. In writ petition no. 5906 of 2006 the sole petitioner who was made to retire on 31.1.2006, on attaining the age of 60 years, has claimed right to continue till he attains the age of 62 years. The reliefs sought by him are as under:
(i) issue a writ, order or direction in the nature of mandamus directing the respondents to permit the petitioner to work up to 30.6.2008 till attaining the age of 62 years and further up to end of academic session as per University Rules, instead of retiring him on 31.1.2006.
(ii) issue a writ, order or direction restraining the respondents from enforcing and implementing the illegal notice/order dated 13-15/01/05 retiring the petitioner on 31/01/2006 and to set aside it.
(iii) issue a writ, order or direction in the nature of mandamus directing the respondents to implement promotion scheme in compliance to resolution 123 of Executive Council dated 31/7/1993-1/8/1993 (as mentioned in para-16 of the writ petition).
(iv) issue a writ, order or direction in the nature of mandamus directing the respondents to provide two increments for Ph.D. degree.
(v) issue a writ, order or direction in the nature of mandamus directing the respondents to implement the recommendations of various committees as mentioned in the body of the petition."
(vi) issue any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
(vii)Award the costs of the writ pegtition in favour of the petitioner.
(viii)issue a writ of certiorari to quash the order/communication dated 24/01/06 sent by the Dy. Registrar (Administration)-II of Respondent University which is enclosed as Annexure 15 to the writ petition."
17. In writ petition no. 7907 of 2006 the matter of promotion are pay scale etc. has been raised, besides the question of right to continue till the age of 62 years. The reliefs sought therein are as under:
(i) issue a writ, order or direction restraining the respondents from enforcing and implementing and further making recruitment as per advertisement notice no.3/2005-2006 (code no.63) published in December-2005, with last date 31.12.2005, by the Respondent University to fill up the 17 posts in CHBS by direct recruitment, contrary to the norms and rules of Kendriya Vidyalaya Sangthan; instead of giving promotions to existing T.G.T. Teachers, be quashed.
(ii) issue a writ, order or direction in the nature of mandamus directing the respondents to provide upward movement to the teachers after their completion of 8 years of service and to rationalize the grades of teachers as recommended by various committees constituted by executive council.
(iii) issue a writ, order or direction in the nature of mandamus directing the respondents to implement promotion scheme in compliance to resolution 123 of Executive Council dated 31/7/1993-1/8/1993.
(iv) issue a writ, order or direction in the nature of mandamus directing the respondents to provide two increments for Ph.D. degree.
(v) issue a writ, order or direction in the nature of mandamus directing the respondents to implement the recommendations of various committees as mentioned in the body of the petition.
(vi) issue a writ, order or direction in the nature of mandamus directing the respondents to permit the petitioner to work till attaining the age of 62 years and further up to end of academic session as per University Rules, instead of retiring in the mid of session.
(vii) issue any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
(viii) Award the costs of the writ petition in favour of the petitioner."
18. Writ petition no. 37725 of 2007 having 20 petitioners is similar to writ petition no. 7907 of 2006 but here right to continue upto the age of 65 years has been claimed due to enhancement of age of retirement of University Teachers. The prayers made in the writ petition are as under:
(i) issue a writ, order or direction restraining the respondents from enforcing and implementing and further making recruitment on post of PGT (Agriculture) as per advertisement no.1/2007-2008 (Code No.81)/(Post Code Number 2025) published in June 2007, having last date 30.6.2007 (Annexure 14), by direct recruitment in Central Hindu Boys School, Kamachha, Varanasi, contrary to the rules/norms of Kendriya Vidyalaya Sangthan as alleged to be adopted instead of giving promotions to existing T.G.T.(Agriculture) Teachers/petitioner no.7-Sushil Kumar Srivastava, contrary to norms and rules of Kendriya Vidyalaya Sangathan, be quashed.
(ii) issue a writ, order or direction in the nature of mandamus directing the respondents not to impose or enforce the norms of Kendriya Vidyalaya Sangthan, without providing the complete rules for promotion scheme from Primary teacher to TGT; from TGT to PGT and from PGT to higher grade viz. Rs. 10,000/--Rs.15,000/- and upward movement to the teachers after their completion of 8 years of service and to rationalize the grades of teachers as recommended by various committees constituted by executive council as well as in compliance to resolution 123 of Executive Council dated 31.7.1993-1.8.1993.
(iii) issue a writ, order or direction in the nature of mandamus directing the respondents to permit the petitioners to work till attaining age of 62 and now upto 65 years as applicable to other teachers of the University and further upto end of academic session as per University Rules, instead of retiring in the mid of session.
(iv) issue a writ, order or direction in the nature of mandamus directing the respondents to provide two increments for obtaining Ph.D. degree.
(v) issue a writ, order or direction in the nature of mandamus directing the respondents to implement the recommendations of various committees as mentioned in the body of the petition. The petitioners no.4, 17, 18 and 20 be provided benefits with retrospective effects and further benefits of higher grade.
(vii) issue any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
(viii)Award the costs of the writ petition in favour of the petitioner."
19. Writ Petition No. 41413 of 2006 is similar to writ petition no. 5906 of 2006 and the sole petitioner Dr. Daya Ram Verma has sought the following reliefs:
(i) issue a writ, order or direction in the nature of mandamus directing the respondents to permit the petitioner to work up to 31.7.2008 till attaining the age of 62 years and further up to end of academic session as per University Rules, instead of retiring him on 31.7.2006.
(ii) issue a writ, order or direction restraining the respondents from enforcing and implementing the illegal notice/order dated 8/16 August 2005, retiring the petitioner on 31/07/2006 and to set aside it.
(iii) issue a writ, order or direction in the nature of mandamus directing the respondents to implement promotion scheme in compliance to resolution 123 of Executive Council dated 31/7/1993-1/8/1993 (as mentioned in body of the writ petition).
(iv) issue a writ, order or direction in the nature of mandamus directing the respondents to provide two increments for Ph.D. degree.
(v) issue a writ, order or direction in the nature of mandamus directing the respondents to implement the recommendations of various committees as mentioned in the body of the petition."
(vi) issue any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
(vii)Award the costs of the writ petition in favour of the petitioner.
20. Writ petition no. 28911 of 1993 is the first one filed by the sole petitioner Ashok Kumar Pathak against recruitment of teachers in the institution in which the petitioner was also working on the ground that he, having already been appointed on the post of Assistant Teacher (Social Studies), the post held by him cannot be filled in by advertisement for a fresh direct recruitment. The reliefs sought by the petitioner are as under:
(i) issue a writ, order or direction in the nature of certiorari quashing the notification dated 10.6.1993 issued by respondent no. 4 with respect to the post of petitioner mentioned in internal page 6 at serial no. 26 filed as Annexure no. 10.
(ii) issue a writ, order or direction in the nature of mandamus commanding respondents not to give effect to the aforesaid notification.
(iii) issue a writ, order or direction in the nature of mandamus commanding respondents to make the petitioner permanent on the aforesaid post.
(iv) issue a writ, order or direction in the like nature as this Hon'ble Court may deem fit and proper under the circumstances of the case.
(v) to award cost of the writ petition to the petitioner."
21. Sri C.K. Parekh, learned counsel appearing for the petitioners contended that though ex facie definition of "College" under the Act excludes "Schools" imparting education upto Secondary or Intermediate Classes but by virtue of Section 15 of the Act, Central Hindu College having been declared as a deemed college maintained by the University, teachers of the said College and its constituents become teachers of University as defined in the Act and, therefore, other terms and conditions of their service cannot be said to be incomparable with University teachers but have to be treated at par with them. Since the University teachers are now liable to retire at the age of 65 years, the petitioners are also entitled to continue till they attain the age of superannuation as that of the teachers of BHU. Placing reliance on para 3 of the Ordinance governing the management of the institution under the School Board framed by the Executive Council's resolution no.310 dated 3.2.1957, he submits that the conditions of service of teachers of various schools are governed by the provisions of various Acts, statutes and Ordinances framed thereunder, hence it cannot be different from that of other University teachers. He contended that Rules and Regulations applicable to the teachers of Kendriya Vidyalaya Sangthan cannot be applied to schools in which the petitioners are working and instead they are entitled to get all the benefits available to University teachers except of course, the grades. He illustrated various benefits in respect whereto the petitioners are comparable and entitled to be treated at par with other teachers of the University as under:
(a) Retirement age- earlier 62 years and now 65 years
(b) Retirement at the end of session if the age of superannuation arises in the midst of session;
(c) Extra increments (three) for the teachers having Ph.D. Degree;
(d) Upper movement after completion of eight years of service;
(e) Promotion as Reader and/or Professor;
22. Per contra, Sri V.B. Singh, Senior Advocate and Pankaj Naqvi, Advocate appearing for the University contended that the schools in which the petitioners are working are not 'College" under the Act and they are also not "teachers" as defined in the Act. Hence claim of parity with the teachers of University by petitioners is wholly unsustainable in law. It is contended that the schools in question are all recognized by Central Board of Secondary Education. Initially, in absence of any different provisions, the terms and conditions as applicable to other University teachers were extended to teachers of schools, concerned in these cases, by virtue of Ordinance of 1957 but later on this comparability seized by substitution of earlier Ordinance by new one framed in 1979 which was substituted by 1981 and 1991 Ordinances, validity whereof is not under challenge in any of these writ petitions.
23. All the schools maintain their independent, distinct entity though owned and managed by University, but that would not make teachers of these schools as teachers of University. It is pointed out that the managing body of schools is different. System of recruitment and appointment of teachers of schools is also different than that of the teachers of the University. Unlike teachers of University, power of recruitment, appointment and to define duties and conditions of school's teaching and other staff is vested in School Board constituted under the concerned Ordinance. They also attempted to demonstrate that the Central Hindu College established in 1898 for imparting higher education as such was different from the Central Hindu Collegiate and other schools in question and, therefore, the suggestion on the part of the petitioner that the erstwhile Central Hindu College itself became initial constituent and structure of the university, hence merely because the petitioners are subsequent appointees, they cannot be denied the benefits which would flow as a result of historical reasons of identifying Central Hindu College with the university, is misconceived and incorrect.
24. The respective submissions of rival parties in my view give rise to the following three issues:
(i) Whether the schools in question are "college" as defined under section 2 (b) of the Act ?
(ii) Whether petitioners can be said to be teachers as defined under section 2(i) of the Act ?
(iii) Whether the terms and conditions of petitioners are comparable with teachers of the University; or, would be governed by Rules and Regulations as applicable to the teachers of Kendriya Vidyalaya Sangthan ?
25. In these sets of writ petitions this Court is merely concerned with the following schools:
(a) Central Hindu College (Boys)
(b) Ranvir Sanskrit Pathshala, Kamachha.
26. As already pointed out, besides Central Hindu College, two schools namely Central Hindu School and Central Hindu Girls School were established separately in 1898 and 1903 respectively. The management of these institution came to be vested at one point of time in the Board of Trustees of Central Hindu College and later on transferred to the University. Now these Schools are being managed by a Board constituted by the University in accordance with the Ordinances framed by Executive Council of University. The constitution of the Board for the aforesaid Schools was not common. Initially, different Boards were constituted. However for the purpose of better uniformity and coherence, a common mode was constituted for the first time vide Ordinance dated 22.07.1979 which had representatives from all the concerned Schools also. Presently this Board is known as School Board under the Ordinance dated 30/31.10.1991, constituted under para 2 (1) thereof and it is this Board which has been conferred with the powers to define duties and condition of service of teaching staff and other employees and also to frame Regulations for efficient and effective administration. It is not in dispute that the Schools in question are of such nature where education is imparted upto class XII only.
27. In my view, the question as to whether the Schools in question are "Colleges" under the Act can be considered and decided without looking into any other factual niceties, and instead, by looking to the definition of the 'College" as also by considering the effect of notification issued under section 15 of the Act in respect of "Schools".
28. A bare perusal of definition of the term "College" under section 2 (b) of the Act shows that unambiguously it does not include a teaching institution like Secondary, Primary or infant school or Pathshala. The question as to whether a Secondary, Primary or infant school or Pathshala is maintained by University or not is wholly irrelevant in order to bring a school of this nature within the term "College" under the Act for the simple reason that the definition is extended to every college or teaching institution which is maintained by or admitted to the privileges of the University but specifically and unambiguously excludes Secondary, Primary or infant school or Pathshala.
29. Sri Parekh learned counsel for the petitioners, having gone through the above definition of the college, in fact, could not dispute this situation but submits that there is a bit distinction with respect to the definition of "teacher" since it is not confined to "College" under the Act but extend to some other classes. He submits that a 'tutor' who imparts instruction in a faculty of or in a college maintained by University shall be a teacher. He submits that for constituting a person "teacher" under the Act, only three things need be seen:
30. (i) the person is a salaried Professor, Reader, Lecturer or Tutor (ii) he imparts instruction in a faculty of or in a college maintained by the University (iii) if he is a person declare to be a teacher by Academic Council.
31. Now in order to bring these cases within the ambit of the Act at par with the teacher of the University, he then refers to section 15 and submits that once notification is issued thereunder, this is a deemed clause that such School would be deemed to be a College managed by the University and that would import the necessary ingredients to constitute a "teacher" under Section 2(i) of the Act without requiring any further condition to be specified.
32. The aforesaid contention makes it necessary to analyse Section 15 of the Act. It says that the Central Hindu College, Banaras, from such date as the Governor General in Council may be notification appoint in this behalf, be deemed to be a "College" maintained by the University. It is not disputed that Central Hindu College Varanasi was so declared by notification no. 833 dated 1.10.1917 published in the Gazette of India dated 6.10.1917. It further provides that University may found, and maintain other Colleges and institutions including High School within a radius of 15 miles from the main temple of the University for the purpose of carrying out instructions and research. My reading of this provision shows two things. Firstly, from a given date as notified, the Central Hindu College is declared to be a "deemed college maintained by the University". The Second part enables the University to establish and maintain other Colleges and institutions including High Schools within a specified distance, i.e., a radius of 15 miles from the main temple of the University. However, this part of the provision is not wider but is restricted to certain objectives provided in Section 15, namely, the purposes of carrying out instructions and research. The powers and purposes of University, are much wider. This is evident from Section 4A of the Act which gives details of powers of the University:
"4A. The University shall have the following powers, Powers of the University namely:-
(1) to provide for instruction in such branches of learning as the University may think fit, and to make provision for research and for the advancement and dissemination of knowledge;
(2) to promote the study of religion, literature, history, Science and art of Vedic, Hindu, Buddhist, Jain, Islamic, Sikh, Christian, Zoroastrian, and other civilisations and cultures;
(3) to hold examinations and to grant diplomas and certificates, and confer degrees and other academic distinctions to and on persons -
(a) Who shall have pursued a course of study in the University or in college and passed the examination or who shall have carried on research work in the manner prescribed by the Ordinances, or
(b) who are teachers of the University or any College under conditions laid down in the Statutes or the Ordinances and shall have passed the examinations of the University under like conditions, or
(c) who being women, shall have pursued a course fo private study in subjects provided for by the Ordinances and shall have passed the examinations of the University in their subjects under conditions laid down in the Ordinances;
(4) to confer honorary degrees or other distinctions in the manner laid down in the Statutes;
(5) to grant such diplomas or certificates to, and to provide such lectures and instruction for, persons not being members of the University, as the University may determine;
(5A) to withdraw degrees, diplomas, certificates and other academic distinctions;
(6) to co-operate with other Universities and authorities in such manner and for such purposes as the University may determine;
(7) to institute professorships, readerships, lectureships and other teaching posts required by the University and to appoint persons to such professorships, readerships, lectureships and other posts;
(8) to institute and award fellowships (including travelling fellowships), scholarships, studentships, exhibitions and prizes in accordance with the Statutes and the Ordinances;
(9) to institute and maintain Halls and hostels and to recognise places of residence for students of the University;
(9A) to institute, establish, maintain, reconstitute amalgamate, divide or abolish departments, faculties or colleges and carry out inspection thereof and inquiry in relations thereto;
(10) to demand and receive such fees and other charges as may be prescribed by the Ordinances;
(11) to supervise and control the residence and to regulate the discipline of students of the University, and to make arrangements for promoting their health and welfare;
(12) to make special arrangements in respect of the residence, discipline and teaching of women students;
(12A) to regulate and enforce discipline among salaried officers, teachers and other employees of the University in accordance with the Statutes and Ordinances;
(13)to create administrative, ministerial and other necessary posts and to make appointments thereto;
(13A) to acquire, hold, manage and dispose of property, movable or immovable, including trust or endowed property, for the purposes of the University;
(13B) with the approval of the Central Government, to borrow on the security of the property of the University, money for the purpose of the University;
(14) to do all such other acts and things, whether incidental to the powers aforesaid or not, as may be requisite in order to further the objects of the University.
33. Apparently, the powers of University are much wider including that of holding examination etc. but for the purpose of Section 15, the University has been conferred restricted power and that too by an enabling provision to found and maintain Colleges and institutions including High School for the purpose of "carrying out instructions and research" only. By proviso to Section 15 such power has been restricted further and any college or institution started after commencement of Banaras Hindu University (Amendment) Act 1966 cannot now be admitted to any such privilege of the University.
34. Assuming for the moment that Central Hindu College became a "College" deemed to be maintained by University, and the Schools in question, if are treated to be a part and parcel of Central Hindu College, though it is seriously disputed by the learned counsels for the University, can it be said that mere such deeming clause will make the Central Hindu College to be a "College" as defined under Section 2(b) of the Act. Having given my serious thoughts over the matter, in my view, the answer would be a straight 'no'. The definition of "College" under Section 2(b) of the Act does contemplate a situation where a college or educational institution, whether relating to higher education or secondary education or primary education, is such as is maintained by University, yet in order to qualify as a "College" under the Act, it clearly excludes such institutions which are secondary or primary even if maintained by University. Therefore, the mere fact that Central Hindu College became a "deemed college" maintained by University, would not make the Central Hindu College and all its constituents to be a "College" as defined under Section 2(b) of the Act, irrespective of the fact whether it is a secondary or primary institution. On the contrary even in such a case the institutions which are secondary or primary or infant, stand excluded even if maintained by University, so long as they are identifiable separately constituting a different entity. In fact the necessity of independent and separate identity is also not contemplated under the Act and in wider sense it can be said that the "College" defined under section 2(b) would not include a secondary, primary or infant school or institutions even if it is maintained by University but for the purpose of the present case I proceed to consider the matter with the rider that in case of non-severability or lack of separate identity, it would be difficult to identify a "College" as defined under the Act excluding that part which constitutes secondary, primary or infant educational institution, and hence this condition is inherent and must be read in the statute.
35. No pleading and relevant material has been placed or demonstrated to this Court to show that the Schools in which the petitioners were appointed or engaged do not have their independent and separate identity. It is also not disputed that the examining body of main examinations like that of X and XII is not University but it is Central Board of Secondary Education with which these schools are affiliated and recognised since 1976.
36. In fact a dichotomy has throughout been maintained. In the calendar of University, the schools maintained by University are referred to at Pages 175 to 177, (copies whereof have been filed as Annexure 2 to the II supplementary rejoinder affidavit filed in writ petition no. 5906 of 2006). It refers to three schools, namely, Central Hindu College, Central Hindu Girls School and Ranvir Sanskrit Vidyalaya and what it actually says, fortifies the view taken by this Court. For ready reference it may be reproduced as under:
"(C) SCHOOLS MAINTAINED BY THE UNIVERSITY
(i) Central Hindu School The Central Hindu School was founded in the year 1898 as a part of the Central Hindu College by Mrs. Annie Besant with a view to provide general instructions for boys along with the most necessary training of Hindu religion side by side with in the case of the Central Hindu College, young men of high character and substantial attainments.
The school along with the Central Hindu College was taken over by the Hindu University Society in the year 1914. The school was transferred to a new building constructed at Kolhua in July, 1917, and this facilitated starting of the work of the Banaras Hindu University in the Central Hindu College premises at Kamachha from Ist October, 1917, from which date, the Central Hindu College was declared to be a College maintained by the Banaras Hindu University. After the Central Hindu College was shifted to the new buildings in the University site at Nagwa in 1921, the school was again removed from Kolhua to the Central Hindu College building at kamachha. It flourished there upto the year 1949 and then again it was shifted to its old building at Kolhua to make room for the Intermediate classes of the Central Hindu College and the College of Science, at Kamachha. The school is at present functioning in the Kolhua buildings. The number of students on roll at present is 891.
The school imparts instruction upto class VIII according to the curriculum and subjects laid down by the Education Department of the Government of Uttar Pradesh for Junior High School. The syllabus for admission examination of the Banaras Hindu University is followed in classes IX and X. Students of the school sit for Admission examination of the University.
(ii) Central Hindu Girls School The Central Hindu Girls School was stated in 1903 and the Board of Trustees of the C.H. College took charge of it in Dec. 1904. It continued as such till the year 1914, when the Hindu University Society took charge of the Central Hindu College, its schools and the Ranvir Sanskrit Pathshala. The Central Hindu Girls School was transferred in 1914 to the Hindu Girls School Society. In the year 1918 the school was taken over by the Banaras Hindu University and it was placed under the management of the Central Hindu School Board. The school was then organised and raised to standard to the Admission Examination. The number of students on roll during the year 1960-61 including Nursery classes, was 1089.
(iii) Ranvir Sanskrit Vidyalaya The Ranvir Sanskrit Pathshala-formerly the Jammu Sanskrit Pathshala- was established in the year 1884 in the Jammu Kashmir House situated at Terhi Neem near Dasaswamedh, Varanasi, by the Dharmarth Trust Council of the Kashmir Durbar. Soon after the establishment of the Central Hindu College, the Pathshala was handed over to Dr. Annie Besant and was named as Ranvir Sanskrit Pathshala. It continued as a part of the Central Hindu College till it was taken over by the Hindu University Society in the year 1914. After the Banaras Hindu University came into existence, the Ranvir Sanskrit Pathshala was put under the management of the Central Hindu School Board. The Pathshala prepares students for the Praveshika Examination. Steps are being taken now to reorganise the courses in the Pathshala and to put it on a stronger footing. In 1961 its name was changed to Ranvir Sanskrit Vidyalaya.
37. Statute 72 of the calender of 1962, (annexed as Annexture 5 to the II supplementary rejoinder affidavit) empowered the Executive Council to make provisions for maintenance of the School and reads as under:
"72. (1) The Executive Council shall make provision for the maintenance of the Central Hindu School and other schools which have been established in accordance with the Act, the Statutes, or the Regulations in force before the commencement of the Banaras Hindu University (Amendment act, 1951).
(2) The management of such schools shall be in accordance with the Ordinances to be made in this behalf."
38. Statute 81 of 1962 calender also reads as under:
"The schools referred to in Statute 72 and all their buildings, properties, furniture, apparatus and books and accounts shall be the property of the University."
39. It shows that the schools in effect belong to University and therefore, the University is empowered to maintain and administer it. For this purpose the Executive Council has been empowered to make relevant provisions. It is not in dispute that the Executive Council in exercise of power, as above, had issued Ordinances making provisions for maintenance and administration of the above Schools from time to time. The mere fact that the Schools are now being owned, maintained and managed by the University does not mean that these schools become "college" as defined under the Act, bereft of the specific exclusion provided under Section 2(b) of the Act. The purpose and objective is quite clear. A University is basically an institution of higher education and has to conform the standards set up by University Grants Commission. It obviously does not include within its ambit infant, primary or secondary institutions. Heavy stress is laid upon the letter dated 4.2.1982, Anenxure-11 to the second supplementary rejoinder affidavit relating to Sri Jai Nath Rai, petitioner of writ petition no. 5906 of 2006. It reads as under:
"The central Hindu School Board of the University at its meeting held on 4th February, 1982 appointed you as Assistant Teacher in Physics (P.G. Scale) in the Central Hindu Boy's School, Kamachha, Varanasi of this University on the terms noted below:
1. Salary Rs. As per rules
2. P.G. Grade Rs. 550-25-750-BE-30-900.
3. Dearness Allowance Rs per rules.
4. Other Allowances, if any Rs. per rules.
5. Your appointment is on probation for two years.
6. The terms of the appointment and services as mentioned above and also others related to the same are subject to the University Act, Statutes, Ordinances, Rules & Regulations applicable from time to time.
If you accept the offer on the terms stated above please report yourself to the Special Officer, Central Hindu Boy's School, Kamachha, Varanasi for duty at an early date but not later than 4th March, 1982. Please send your letter of acceptance immediately on receipt of this letter.
Your joining report should be submitted on the proforma enclosed herewith, alongwith copy of your Matriculation and other certificates duly attested by the Special Officer, Central Hindu Boy's School, Kamachha, Varanasi in support of your age and qualifications."
40. His appointment clearly has been made by Secretary Central Hindu School Board. He is not an officer of University under the Act but an officer of the Board constituted under the Ordinances as referred to hereinabove. Under 1979 Ordinance, the Chairman of the Board was such as nominated by Vice Chancellor from amongst the Professors of the University. Secretary is also appointed by the Vice Chancellor under the aforesaid Ordinance from amongst the employees of the University. Now under the current Ordinance, i.e., of 1991, the Vice Chancellor/Rector has been made Chairman of the Board and the Registrar of University has been made Member-Secretary.
41. Para 6 of appointment letter referred to above, provides that terms of appointment and service are subject to the University Act, Statute, Ordinance, Rules and Regulations applicable from time to time. This by itself does not make an incumbent, a teacher of University under the Act, excluding the clear and specific provisions contained therein. Obviously, since the schools are managed and maintained by University, having been taken by it in exercise of powers conferred under the Act, its procedure for administration and management may also be governed by the provisions made under the Act or the statute or the Ordinance etc. but that does not mean that the basic distinction of Secondary, Primary and Infant schools maintained by University would disappear in order to construe it a "college" under the Act as defined under section 2(b) and to make teaching staff of such schools as the teachers of the University as defined under Section 2(i) of the Act.
42. The term "college" used in Section 2(i) of the Act would in my view is nothing but refers to "College" under Section 2(b) of the Act and any attempt to widen it would be nothing but doing violence with an otherwise unambiguous statutory provision.
43. To the same effect is the letter of appointment of Sri Jai Shankar Singh, petitioner no.1 in writ petition no. 37725 of 2007. His letter of appointment dated 8.4.1972 (Annexure 12 to the second supplementary rejoinder affidavit) is also similarly worded as that of appointment letter of Dr. Jai Nath Rai (supra) except the distinction that appointment letter has been issued by Deputy Registrar of the Selection Committee. It is not disputed by Mr. Parekh that at that time, these schools were being governed by the provisions contained in Executive Council's resolution dated 3.2.1957, clause 3 whereof reads as under:
"Conditions of service of employees- Ordinances of the University governing the conditions of service, which are applicable to the teachers and employees of the University, shall also apply to the teachers and employees of the Schools and Pathshalas."
44. Later on the above resolution was substituted by the resolution dated 22.7.1979 and presently it is being governed by the Resolution dated 30/31st August 1991. The power to frame regulations for administration of Schools is conferred upon the Board. The submission that in 1974, Executive Council passed resolution for confirmation of teachers of Central Hindu School (Boys) would make no difference in the matter for the reason that it was always open to the Executive Council or the Board to make provisions as would govern the terms and conditions of service of teachers of schools since they were not by operation of law teachers of the "College" or "University". Unless the provisions are made by Executive Council under the Ordinance or the Rules or the Regulations framed later on, the teaching staff of schools would not automatically be governed by provisions as applicable to other teachers of the University. As already said, it is not in dispute that since 1976 the schools were affiliated with the Central Board of Secondary Education.
45. It is also not in dispute that while granting pension to extend revised scale of pay to teachers of schools maintained by the University, as applicable to Kendriya Vidyalaya Sangthan with effect from 1.1.1996, the University Grants Commission in its letter dated 1.9.1999 (Annexure 17 to the II supplementary rejoinder affidavit in the writ petition of Dr. Jai Nath Rai (supra) provided that same would be subject to the condition that terms and conditions and recruitment rules would be strictly at par with Kendriya Vidyalaya Sangthan as on 1.1.1996. The University in its letter dated 2.11.1999 (Annexure 18 to the II supplementary rejoinder affidavit in WP of Dr. Jai Nath Rai (supra) clearly stated that the above benefit of revision of pay was made applicable after receiving undertakings/options from the teachers of schools run by the University.
46. Further in order to give effect to University Grants Commission's letter dated 1.9.1999, the Vice Chancellor passed the following order as reproduced in the letter dated 2.11.1999 "Under the circumstances, following orders are passed for implementation which will be reported to the next meeting of the Executive Council alongwith other terms and conditions mentioned by the UGC:
1. Cadre and recruitment rules as per Kendriya Vidyalaya Sanghathan on the terms and conditions prescribed by the UGC become into force with effect from 1.1.1996.
2. The benefit already extended on or after 1.1.1996 to the School teachers under earlier scheme/rules which was not in accordance with Kendirya Vidyalaya Sanghathan rules will be adjusted against arrears to be paid on revised scale of pay.
3. Option and undertaking be invited from the School Teachers from extension of revised scale of pay as per Ministry of Human Resource Development (Department of Education) letter No. F.3(i)-1497.UT.2 dated 5the February, 1999 and UGC letter No.F.3-33/98(CU) dated 1.9.1999.
4. Application with undertaking be also invited from the School Teachers for extension of ad hoc advance @ Rs.25000/- per head adjustable against the arrears to be paid on revision of scale of pay. Payment of ad hoc advance will not be admissible to those teachers who have joined or retired after 1.1.1996.
5. A Committee headed by the Vice-Chairman School Board be constituted with the following to frame revised recruitment rules etc. latest by 25th November, 1999 in accordance with the directives of the UGC and GOI:
1. Prof. C.M. Jariwala, Coordinator, Legal Cell
2. Prof. G.P. Verma, Dean, Faculty of Law
3. Sri A.K. Bose, I.A.O.
4. Sri Lal Chand, Dy. Registrar (Admin.) Member Secretary
6. It be also ensured that payment of ad hoc advance be released before Deepawali holidays to those teachers who submits their option along with undertakings and application to this effect as per rule.
Accordingly all the teachers of the concerned Schools/Vidyalaya are hereby requested to submit their option form and undertaking with service statements on the enclosed proforma though proper channel as early as possible OR within one month from the date of issue of this notification. Application for ad hoc advance towards means duly forwarded be also sent latest by 4th November, 1999 to the office of the undersigned (Fixation Cell) for further necessary action."
47. It is not the case of the petitioners that they had not submitted their options/undertaking as provided in the said order in order to get benefit of revision of pay at par with Kendriya Vidyalaya Sangthan teaching staff. It also appears that provisions were made comparable with Kendriya Vidyalaya Sangthan teaching staff and sent to University Grants Commission for its approval. The letter dated September 2001 (Annexure 20 to the II Supplementary rejoinder affidavit in writ petition of Dr. Jay Nath Rai) says except the provisions regarding promotion to senior scale/selection scale, in respect of other matters nothing objectionable was found by it (UGC). It is, however, admitted that pay scales were revised with effect from 01.01.1996 at par with the Kendriya Vidyalaya Sangthan and this benefit has been enjoyed by all the petitioners without any reservation, inasmuch as nothing has been place on record. Their only insistence with respect to age of retirement and other conditions at par with the teachers of the University is founded on their claim that schools in which they are appointed were in existence before the enactment of the Act and on the establishment of the University under the Act, these schools became part and parcel of University and should be treated to be an integral part of the University like colleges of the University and there cannot be any distinction between the teachers of the University qua the petitioners or other teaching staff of the above mentioned schools. This basic submission, as discussed above, does not find favour with this Court. Hence the very basic submission having failed, in my view, the petitioners cannot claim parity with teachers of University in the matter of age of retirement etc.
48. Coming to the writ petition no.28911 of 1993 filed by Sri Ashok Kumar Pathak, his recruitment was never made in accordance with relevant provisions as applicable at that time. This Court finds no reason to restrain the authorities concerned from undergoing the process of recruitment in accordance with relevant provisions as applicable to the school concerned for direct recruitment. Mere appointment for a few days or few months or years, without following the procedure prescribed in law, would not confer any right upon an incumbent, either to hold the post or continue in service. The University cannot be doubted to be a "State" within article 12 of the Constitution of India as also the "schools" maintained by the University. Thus for recruitment and appointment in service, it is bound to protect rights guaranteed under article 16 of the Constitution of India i.e., equal opportunity of employment to all persons. Without complying with the said mandate of the Constitution, appointment in any of the schools maintained by University would be unconstitutional. The ratio of the decision of the Constitution Bench of Hon'ble Apex Court in Secretary, State of Karnataka vs. Uma Devi (2006) 4 SCC 1 would apply with all force in the present case also. Hence the petitioner Ashok Kumar Pathak in my view is also not entitled to any relief as sought in the writ petition.
49. In view of the above discussion, I have no hesitation in holding that the petitioners cannot be said to be "Teachers" of the College as defined under section 2 (i) of the Act. The schools in question are not 'Colleges' as defined under section 2 (b) of the Act, hence, the claim of petitioners for parity with the teachers of University is unsustainable. I find therefore, no merit in all these writ petitions.
50. All the writ petitions are dismissed. Interim order, if any, shall stand vacated. In the facts and circumstances of the case the cost is made easy.
Dated. 07.01.2011 Akn