1. Heard Sri S.K. Kalia, learned Senior Advocate assisted by Sri Srideep Chatterjee, learned counsel for the petitioners, Sri Alok Sharma, learned Additional Chief Standing Counsel for respondent-State and Sri Satyanshu Ojha, learned counsel for respondent Nos.3 and 4.
2. By means of the present writ petition, the petitioners are challenging the order dated 18.2.2000 with a prayer to issue writ in the nature of Mandamus directing the opposite parties not to give effect impugned order dated 18.2.2000.
3. Brief facts of the case are that the petitioners were granted appointment on the post of Senior Research Associates in the scale of Rs.570-1100 between February, 1986-1988. Later on, they were granted pay scale of Rs.700-1600 of Assistant Professor / Teacher w.e.f. 06.06.1981, which was revised in the pay scale of Rs.2200-4000 and subsequently, it has been revised in the pay scale of Rs.8000-13500/- in pursuance to 5th Pay Commission.
4. Vide resolution dated 15.10.1990, the Board of Management of the University resolved that all the employees of University should be given U.G.C. scale, as has been given by G.B. Pant University of Agriculture & Technology, Pantnagar, District Udhamsinghnagar (Nainital) and communicated a letter dated 23.10.1990 in this regard to the State Government.
5. The University again sent a reminder to the State Government on 19.11.1990 for grant of U.G.C. Scale to the Senior Research Assistants and in the meeting dated 27.12.1990, the Board of Managment of the University has resolved that in case the State Govenrment did not take decision for grant of U.G.C. scale to the Senior Research Assistants, the Board itself shall take a decision in the next meeting.
6. Accordingly, when no action has been taken by the State Government, the Board of Management in its meeting dated 26.03.1991 considered the matter and accepted with immediate effect for grant of U.G.C. pay scale of Rs.2200-4000 to the Senior Research Associates.
7. In pursuance thereof, vide order dated 29.04.1991, the State Government sought clarification that whether the Senior Research Assistants perform the work of teachers and with regard to upcoming financial burden on the State Government, reply of which was given by Vice Chancellor of the University vide letter dated 08.05.1991 with the statement that Senior Research Associates are discharging duties of teachers and demanded for changing of nominclature of the petitioenrs as "Teacher" and for grant of U.G.C. pay scale to them after declaring as Teacher.
8. The State Govenrment sent another letter dated 18.06.1991 directing the University that in case the Senior Research Assistants fulfill the eligibility criteria of teachers, they will be declared Teacher under the relevant Act.
9. Vide letter dated 15.10.1991, the Vice Chancellor of the University had informed the State Government that in view of provisions contained under Section 2(k) of the Act, all the Senior Research Associates fulfill the conditions of being a Teacher.
10. In pursuance thereof, the State Government sent a letter dated 29.11.1991 by declaring the Senior Research Associates as "Teachers" under Chapter XII of the Statute, if they fulfill necessary conditions and in pursuance thereof, the Board of Management also requested to the State Government for grant of U.G.C. pay scale to the petitioners vide resolution dated 13.03.1992, reminder to which has been sent vide letter dated 16.11.1992, however, in place of granting pay scale of U.G.C. to the petitioner, the State Government issued a government order on 14.10.1993 to the Unierisity informing that name and designation of Senior Research Associates is being converted to the post of "Project Assistant" and they were given pay scale of Rs.1740-3000/-.
11. Feeling aggrieved, the petitinoers filed Writ Petition No.1082 (S/B) of 1995 before this Court, wherein, when no counter affidavit was filed by the respondent, this Court granted interim order vide order dated 07.05.1999, as under:
" ......... We have no option but to pass order to the effect that the respondents shall either pay the same scale of teachers / Assistant Professors to the petitioners or respondents will show cause as to why the same cannot be given to the petitioners."
12. In pursuance thereof, the State Government vide government order dated 22.07.1991, granted the pay scale of "Teachers" to the petitioners w.e.f. 13.03.1992.
13. The Vice Chancellor of the University vide order dated 27.10.1999 recommended for pay scale of Assistant Professor to the petitioners and in pursuance thereof, the petitioners were adjusted in the cadre of Assistant Professor in Research and Extension Department vide order dated 14.12.1999 and were getting salary, accordingly.
14. By means of impugned order dated 18.02.2000, the benefits provided to petitioners of designation of Assistant Professor with effect from 13.03.1992 was modified to the extent that the benefit shall be provided from the date of issuance of Government Order i.e. 22.07.1999 and their designation shall be "Senior Research Assistant" on the place of Teacher / Assistant Professor. Being aggrieved, the present writ petition has been filed before this Court.
15. Assailing the impugned order, submission of Sri S.K. Kalia, learned Senior Advocate for the petitioners is that the designation of Teacher/Assistant Professor was granted by following the procedure prescribed under Chapter XII of the Statute framed under the Universities Act. Recommendation to the same was made by the Academic Council which was considered by the Board of Management as per the provisions of Chapter XII and thereafter, the petitioners were paid salary, thus, by means of a government order, the status given to petitioners cannot be taken away. Therefore, his submission is that the order impugned is wholly without jurisdiction.
16. He next submitted that the order impugned does not contain reasons in modifying the benefits granted vide Government Order dated 22.07.1999. The designation of a Teacher/Assistant Professor cannot be taken away by issuing a government order, once it has been provided by following the procedure prescribed under the Statute.
17. He further submitted that claim of parity of Research Assistant cannot be made a ground for taking right provided to petitioners as Teacher/Assistant Professor. He submitted that parity cannot be taken of wrongs. In this view of the matter, his submission is that the impugned order is per se illegal and is liable to be set aside.
18. His last submission is that under the Universities Act, statutes are framed which have statutory binding effect. In case the University decided to take any decision otherwise, the procedure prescribed under the Statute would have been followed.
19. On the other hand, Sri Alok Sharma, learned Additional Chief Standing Counsel submitted that the order impugned does not suffer from any infirmity or illegality. The Hon'ble Governor has exercised his power in consonance with the provisions provided under the Statute, therefore the same is not liable to be interfered by this Court.
20. He next submitted that once the benefits have been provided to the Research Assistants from the date of issuance of government order, the petitioners would have also been granted benefit from the date of issuance of Government Order.
21. Sri Satyanshu Ojha, learned counsel for the respondent-University submitted that the decision of Board of Management dated 23.03.1992 was not approved in the subsequent meeting of the Board of Management. He next submits that although the University has considered claim of the petitioners fro grant of designation of Teacher/Assistant Professor but under Chapter XII of the Statutes, the procedure has been prescribed to make selection on the post of Professor, Reader and Lecture, therefore, the designation of Teacher/Assistant Professor to the petitioners cannot be held to be illegal.
22. He next submitted that the post on which the petitioners have been redelegated to hold is not available in the University and that has been declared to be dying cadre.
23. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
24. In regard to first submission advanced by learned Senior Counsel for the petitioners that the designation of teachers was granted to the petitioners in accordance with the precedure prescribed under Chapter XII of the Statute framed under Universities Act and recommendation made by the academic council and consideration of Board of Management. For ready reference, the provisions contained under Chapter XII of the Statute framed under First Statutes of The Narendra Deva Krishi Evam Prodyogik Vishwavidyalaya, Faizabad is being quoted below:
"CHAPTER - XII CLASSIFICATION OF THE TEACHERS OF THE UNIVERSITY "Section 28(d):
1. The Board of Management shall, from time to time, determine after considering the recommendation of the Academic Council in this behalf, the classification of the teaching staff of the University and appropriate designations, i.e. Professors, Associate Professors/ Readers, Assistant Professor / Lecturers and the like. The Board shall also have power to later 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 approved for the University provided that the proportion of time of the teachers to be devoted to teaching, research and extension or administrative duties should be specified in their contract of employment."
25. On its perusal, it is evident that the Board of Management shall consider the recommendations made by the Academic Council in regard to classification of designations like Professors, Associate Professors/ Readers, Assistant Professors / Lecturers and shall have the power to alter or modify such classification in any particular case.
26. On perusal, it is further transpired that the teachers of the University shall be employed on a whole time basis on the pay scale approved for University provided that the proportion of time of teachers to be devoted to teaching, research and extension or administrative duties and that should be specified in their contract of employment.
27. In accordance with the provisions contained under aforesaid statute, the Academic Council of the University considered the claim of the petitioners and the same was placed in the meeting of Board of Management and thereafter, the petitioners were paid salary, therefore, by means of a government order, the right given to the petitioners, as per statute 12 cannot be taken away. The government order cannot override the provisions contained under the statute. Thus, the submissions advanced by learned Senior Counsel for the petitioners has substance in the matter.
28. In regard to his second submission that impugned order does not record reasons, I have perused the impugned order.
29. On its perusal, it is reflected that without taking into consideration the provisions contained under Chapter XII of the Statute, the impugned order has been passed. The impugned order does not record reasons that why the petitioners shall be paid salary with effect from the date of issuance of government order. It also does not contain reasons that once by following the procedure prescribed under the statute and as per govnerment order dated 22.07.1999 the designation of Teacher / Assistant Professor was granted to the petititoners, how without assigning cogent reasons the same can be withdrawn by issuing subsequent government order.
30. In regard to submission advanced that parity cannot be taken of wrongs, the Court is of the opinion that the law in this regard is very much settled that parity of wrongs cannot be granted to similarly situated persons, therefore, in the present case the respondents are taking parity of wrongs, which is not permissible in the eyes of law.
31. The University was established under the act and statute framed thereunder in pusuance to government order dated 22.07.1999. The procedure prescribed under Chapter XII of the statute framed under the University Act, the academic council after consideration of claim of the petitioners made recommnedation to the Board of Management and the same was accepted and salary was paid to the petitioners, therefore, the entire proceeding initiated subsequent thereto cannot be held to be justified.
32. The submisison advanced by learned counsel for the respondents to the effect that the decision of Board of Management dated 23.03.1992 was not approved in the subsequent meeting of Board of Management cannot be a ground for denial of benefits provided to the petitioners.
33. On over all consideration of submissions advanced by learned counsel for the parties and material available on record, the impugned order passed by the respondent dated 18.02.2000 being illegal and unreasoned cannot be sustained and is hereby set aside.
34. The writ petition succeeds and is allowed.
35. The respondents are directed to treat the petitioners to be Teacher / Assistant Professor, respectively, and to pay all consequential benefits as admissible to their post within a period of three months from the date of production of a certified copy of this order.
36. No order as to costs.
Order Date :- 19.02.2021 Adarsh K Singh