Court No. - 36 Case :- WRIT - A No. - 8594 of 2021 Petitioner :- Top Ram Shukla and another Respondent :- Union Of India and 2 Others Counsel for Petitioner :- Sita Ram Sharma Counsel for Respondent :- A.S.G.I.,Kshitij Shailendra
Hon'ble Mahesh Chandra Tripathi,J.
1. Heard Shri Sita Ram Sharma, learned counsel for the petitioners and Shri Kshitij Shailendra, learned counsel for the University of Allahabad.
2. Present writ petition is preferred seeking following reliefs:-
"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned Notification dated 06.9.2016 (Annexure No.24) issued by the Registrar, University of Allahabad, Allahabad i.e. respondent no.2.
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to pay the petitioners their regular monthly salary including the arrears of their salary from November, 2014 till date within a period to be specified by this Hon'ble Court; or alternatively in case the institute is treated as having been close down to absorb the petitioners against the alternative post in the University itself with all the consequential benefits including payment of arrears of salary of the petitioners within a period to be specified by this Hon'ble Court."
3. It appears from the record that the University of Allahabad was governed by the provisions of U.P. State Universities Act, 1973 and the First Statute of University of Allahabad framed thereunder. The University Grants Commission, New Delhi sent a communication dated 22.1.1976 to the University according approval to the proposal of the University of Allahabad for introducing Correspondence Courses in Bachelor of Arts and Commerce streams in the University of Allahabad. The Academic Council in its meeting held on 22.7.1976 thereafter proposed introduction of correspondence courses and also proposed a set of Ordinances for the purpose. Accordingly, the Executive Council on 29th July, 1976 took a decision to approve the establishment of Institute of Correspondence Course and Continuing Education (hereinafter referred to as 'ICC&CE'). On 13.7.1985 the Executive Council also constituted an Advisory Committee for the Overall Administrative Supervision of the ICC&CE with Vice Chancellor as its Chairman. The Registrar of the University sought approval of the State for creation of various posts in the ICC&CE. The approval was granted by the State Government vide Government orders dated 4.5.1991 and 19.12.1998 under Section 44 of the U.P. State Universities Act, 1973 with the condition that no financial grant shall be provided by the State to the ICC&CE as it was to function as a self-finance institution.
4. Thereafter, the ICC&CE proceeded to appoint the petitioners on daily wage basis on the posts of Office Assistant and Peon in the years 1994 and 1993 respectively. Such appointment was subsequently made for a fix period of three months and was extended from time to time. Orders subsequently were passed appointing the petitioners in specified pay scale on temporary basis. Benefit of provident fund, insurance, gratuity etc. were also extended to employees of ICC&CE i.e. petitioners, vide different orders passed by the University authorities. On 27.3.1999, the Executive Council of the University of Allahabad proposed merger of ICC&CE with Purushottam Das Tandon Open University. This proposal, however, was not finalized as requisite approval was not granted by the State.
5. Meanwhile, by a Parliamentary Legislation, the University of Allahabad Act, 2005 i.e. Act No.26 of 2005 came to be passed, which received assent of the President of India on 23.6.2005. A notification dated 11.7.2005 was issued by the concerned department providing that Act No.26 of 2005 was to come into force w.e.f. 14th July, 2005. Section 3(y) of the Act of 2005 defined 'Institute' to mean an Institute established and maintained by the University. Section 5 (d) provides that every person employed by the University immediately before the 14th July, 2005 was to continue to hold office in the service of the University by the same tenure, at the same remuneration and upon same terms and conditions and privileges, unless and until such employment is terminated or until such tenure, remuneration and terms and conditions are duly altered by the Statutes. By virtue of the provisions of the Act of 2005, the Ordinances made under the State Universities Act were to continue, in so far as it was not in consistent with the provisions of the Act of 2005 and the Statutes. The Executive Council in a meeting held on 8.12.2011 has passed a resolution for including the ICC&CE as a permanent institute of the University under Statute 30(1). In a meeting held of ICC&CE on 24.1.2012, a decision was taken to integrate the institute as a permanent institute of the University of Allahabad. The Registrar of the University based upon the decision taken by the Executive Council forwarded communication to the Government of India seeking consent of the Visitor of the University to amend the First Statute by including the ICC&CE also as one of the institutes of the University in Statute 30(1) of the First Sstatutes. A list of employees was also annexed and forwarded. The communication of the University seeking assent of the Visitor to amend the statute has remained pending and various proceedings have been instituted before this Court for a request to be made to the Visitor to accord his consideration in the matter.
6. Thereafter, some Class-III and IV employees of the Correspondence Course approached this Court by preferring Writ A No.31696 of 2016 (Rekha Singh vs. Union of India and 3 others) and a Division Bench of this Court had proceeded to allow the writ petition on 13.4.2018 with following directions:-
"In view of the aforesaid facts and circumstances, we are of the opinion that in exercise of powers under Section 28(3) of the Act, 2005 the Visitor has no authority of law to deny or refuse grant of assent to the proposed amendment to the Statues as resolved by the Executive Council and that the power of withholding the assent is not unfettered so as to permit him to keep it pending or withheld for years together as withholding of the assent is permissible only for a limited period which may be fair and reasonable in the given facts and circumstances of the case.
Accordingly, the Ministry of Human Resource Development, Department of Higher Education, Shastri Bhawan, New Delhi is directed to place the matter once again before the Visitor and to have his final opinion for the grant of assent or for remittance of the matter to the Executive Council of the University for reconsideration, if necessary.
Since the ICC&CE is a Self-Financing Institute of the university, we do not certainly like to burden the public exchequer or the Government with the liability to pay salary and the emoluments admissible to the petitioner as Assistant Director of the ICC&CE but are of the clear opinion that as the petitioner had continuously worked there from November, 2014 till her retirement in 2017, there is no justification not to pay her salary/remuneration admissible to her otherwise it would amount to Begar which is not only prohibited under Article 23 of the Constitution of India but is also punishable.
Accordingly, we direct the University to make immediate arrangement for payment of salary and emoluments to the petitioner for the period November, 2014 till 2017 and to make the entire payment within a period of two months of the receipt of the copy of this order failing which criminal action for punishing the erring officers shall be taken in accordance with law.
The Writ Petition is allowed as above."
7. The aforesaid judgement was challenged by the University of Allahabad before the Apex Court by preferring Special Leave Petition No.25675 of 2018 (University of Allahabad vs. Rekha Singh & ors) and the same was dismissed on 04.7.2019. The review petition filed by the University of Allahabad was also dismissed by the Apex Court on 19.9.2019. Thereafter, some other Class-III and IV employees of the Correspondence Course had also filed Writ A No.19384 of 2017 (Harendra Pratap Singh and 27 others vs. Union of India & 3 others) and a coordinate Bench of this Court had proceeded to allow the writ petition on 14.5.2018 with following observations:-
"26. From the statutory scheme, noticed above, it is observed that courses of study and subject thereunder in which instructions were being offered by the ICC&CE immediately prior to commencement of the new Ordinances of 2008 shall be deemed to be the approved courses of study, which could be suspended in the manner specified, and only thereupon it shall come into effect. Specific approval of Academic Council is mandatory for the purpose. In the facts of the present case, the Board of Faculty either suo motu or on a proposal submitted by Advisory Board is not shown to have recommended for suspension of approved course of study nor it has been approved by the Academic Council. The authority competent having not taken any decision to suspend the approved courses of study or subjects for specified period, it would not be permissible for the Registrar of the University, unilaterally, to suspend the instruction offered by the ICC&CE in the courses of study and subjects thereunder. Law is well settled that once the statute provides a particular method of doing a thing, all other modes of doing it would be prohibited in law (See:- Taylor Vs. Taylor, (1876) 1 Ch D 426, as followed in Nazir Ahmed Vs. King Emperor, AIR 1936 PC 253; State of Uttar Pradesh Vs. Singhara Singh, AIR 1964 SC 358; and Prabha Shankar Dubey Vs. State of Madhya Pradesh, AIR 2004 SC 486).
27. In the counter affidavit filed by the University, there is no explanation brought on record as to how the instructions imparted in the ICC&CE have suddenly been discontinued from the Academic Sessions 2016-2017. There is no deliberation by the competent authority on the issue nor any reasoned decision appears to have been taken at the competent level. The decision of Registrar to suspend instructions from the Academic Sessions 2016-2017 is an abrupt move, which is not backed by due deliberation required by the competent body nor is it backed by a decision taken by the competent authority. The Registrar's notification under challenge, therefore, is found to be without jurisdiction and is otherwise wholly unreasonable and arbitrary, and is accordingly liable to be quashed.
28. The decision to stop petitioners' engagement in ICC&CE as well as denial of salary/remuneration to Class-III and Class-IV employees appears to be equally abrupt, unjust and arbitrary. Admittedly petitioners were engaged prior to the University becoming a Central University. By virtue of Section 5(d), engagement of petitioners upon the terms existing then have clearly been protected by operation of law. It was not possible for the University to have suddenly interfered with working of the petitioners without passing any valid order, particularly when they have been working for the last several decades.
29. The University, as a matter of fact, has not proposed discontinuance of the ICC&CE or its academic activities from the year 2016-2017. As a matter of fact, a decision has already been taken by the Academic Council and the Executive Council to elevate its status as a permanent institute by including it in Statute 30(1) of the Statutes. The mere fact that assent of the Visitor has not been extended for doing so would not mean that all academic activities be stopped in the ICC&CE, and the existing staff be removed or their salaries be withheld. Even the decision of UGC, which is relied upon by the University as being the reason for discontinuing the activities of ICC&CE does not appear to have been appropriately analyzed and examined by the University. The mere fact that allocation of funds from a particular budgetary head has been disapproved by the UGC would not mean that UGC has disapproved functioning of ICC&CE itself. Specific approval of UGC with regard to running of ICC&CE as well as its continuance under the Statutes and Ordinances remains intact. The Registrar, therefore, was not justified in discontinuing with the activities of ICC&CE merely due to the communications received from UGC in the matter relating to allocation of funds.
30. The autonomy, which is expected to be conferred upon a self-financed institute, neither seems to exist for the ICC&CE nor the financial support which otherwise is available to an University Institute financed by it exists for ICC&CE. It appears from the record that University treats ICC&CE as a self-financing institution when it comes to providing financial aid, as is available to other departments and treats ICC&CE as its department when issues of autonomy is raised. This aspect needs to be deliberated upon by the competent forum, so as to ensure that the Act, Statutes and Ordinances are complied with.
31. Having allowed petitioners to work for nearly 30 years, it would not be just, legal and valid to allow the respondents to suddenly discontinue engagement of petitioners so as to deny them salary, as has been done herein.
32. For the reasons aforesaid, this writ petition succeeds and is allowed. Order passed by the Registrar, contained in notification dated 6.9.2016, in so far as it directs discontinuance of all academic activities from the Academic Sessions 2016-2017, stands quashed. Unless a decision is taken by the Competent Authority, in accordance with law, the position existing with regard to ICC&CE shall continue as it was prior to 9.2.2008 i.e. when the new ordinances have come into being. The services of petitioners would continue in the employment of ICC&CE upon the status as it stood prior to 14th July, 2005, by virtue of Section 5(d) of the Act of 2005, and they shall be entitled to payment of salary, as they were receiving it month to month, and shall also be entitled to arrears of salary.
33. In the facts and circumstances, there shall be no order as to costs."
8. Again some Class-III and IV employees of the Correspondence Course preferred Writ A No.11838 of 2019 (Raj Kumar Dwivedi & 8 others vs. Union of India and 5 others) and a coordinate Bench of this Court had proceeded to dispose of the writ petition with following observations:-
"The petitioner claim that they were the employees in the Institute of Correspondence Course and Continuing Education under the University of Allahabad. They have come to this Court with the grievance that without assigning any reason salary has not been paid to them since 2014. The petitioners have already made representations to the Registrar of the University but that representation has also remained unheeded and that is why the present writ petition has been filed.
Learned counsel appearing for the Allahabad University submits that he does not know whether the petitioners are actually the employees of the University and have worked for at length of time and as such, a direction be issued to the Registrar to verify the facts mentioned in the writ petition and pass appropriate orders in accordance with law with regard to the claim of the petitioners.
The writ petition is disposed of with the observation that the Registrar- respondent no.3 may consider the claim of the petitioners with regard to payment of salary as well as post retiral dues, if any, and pass appropriate orders in accordance with law, as far as possible, within a period of two months from the date a certified copy of this order along with the fresh representation is presented before the authority concerned."
9. In this backdrop, learned counsel for the petitioners submits that the aforesaid employees have been absorbed by the Vice Chancellor of the University. He has placed reliance on the communication dated 16.7.2019 sent by the Under Secretary to the Government of India, Ministry of Human Resource Development, Department of Higher Education, New Delhi to the Registrar, University of Allahabad, Allahabad with regard to matter of Institute of Correspondence Courses and Continuing Education (ICC & CE) wherein it has been indicated as under:-
"I am directed to refer to the University of Allahabad's letter No.05/R/281/2019 dated 24.03.2019 on the subject cited above and to state that the Resolution of their EC dated 08.03.2019, in so far as it implies withdrawal of the earlier resolution of EC dated 25.01.2012, wherein it was resolved to amend Statute 30 to facilitate the merger of ICC & CE with the University, has been noted. However, the University may note that if it intends to close the temporary self-financing ICC & CE on permanent basis, the Statute 30 (2) of the Statutes of the University of Allahabad Act, 2005 will require to be repealed, for which the University will have to initiate action as per the provisions of Section 28 of the said Act."
10. It is submitted that in pursuance of the decision so taken by the Executive Council in its meeting held on 26.2.2021 on the letter dated 05.8.2019 of Under Secretary to Government of India, MHRD, New Delhi regarding absorption/payment of salary to the employees of ICC&CE, further notification was made by the Registrar, University of Allahabad on 15.3.2021 for convening the meeting of the Executive Council and submit its report to the Vice Chancellor so that the same may be placed before ensuring the meeting of the Executive Council for further necessary action. The petitioners have completed all the required formalities but they are not getting their salary from November, 2014 till date. There is no other source of income for their daily needs and they are facing financial crisis on account of arbitrary action of the respondents and as such, this Court should come for rescue and reprieve the petitioners.
11. On the other hand, Shri Kshitij Shailendra, learned counsel appearing for the University fairly states that so far as the first relief is concerned, the same has already been set aside by this Court vide judgement and order dated 14.5.2018 passed in Writ A No.19384 of 2017 filed by Harendra Pratap Singh and 27 ors. Against the said judgement and order dated 14.5.2018 the Special Appeal filed by the University of Allahabad is pending consideration without any interim order. So far as leave accorded by this Court while allowing the writ petition is concerned, the Competent Authority has proceeded to discontinue the ICC&CE in the year 2019 itself and the Scheme has also been floated by the University for absorption of the employees of ICC&CE. He submits, on the basis of instructions, that in response of the Scheme for absorption some of similarly situated incumbents have approached to the University and accepted the terms and conditions of the University for their respective absorption. He submits that so far as the alternative relief for the absorption of the petitioners is concerned, the University has no objection. In case the petitioners approach to the University with appropriate application in response to the Scheme in question, definitely the University would consider their request for absorption in the University against the vacant posts.
12. Learned counsel for the petitioner fairly states that the leave may be accorded to the petitioners to approach to the Registrar of the University of Allahabad for according alternative relief.
13. So far as the first relief is concerned, the impugned notification dated 06.9.2016 issued by the Registrar, University of Allahabad, insofar as it directs discontinuance of all academic activities from the Academic Sessions 2016-2017, has already been quashed by a coordinate Bench of this Court vide judgement and order dated 14.5.2018 passed in Harendra Pratap Singh's case (supra) with rider that unless a decision is taken by the Competent Authority, in accordance with law, the position existing with regard to ICC&CE shall continue as it was prior to 9.2.2008 i.e. when the new ordinances have come into force and the services of petitioners would continue in the employment of ICC&CE upon the status as it stood prior to 14th July, 2005, by virtue of Section 5(d) of the Act of 2005, and they shall be entitled to payment of salary, as they were receiving it month to month, and shall also be entitled to arrears of salary. The aforesaid judgement dated 14.5.2018 is subject matter of challenge in pending Special Appeal and definitely the right of the petitioners would flow on the basis of outcome of the Special Appeal.
14. So far as second alternative relief is concerned, the petitioners may approach to the Registrar of the University of Allahabad for their absorption in the University.
15. With the aforesaid observations/directions, the present writ petition stands disposed of.
Order Date :- 29.7.2021 RKP