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Prof. (Smt.) Kalawati Shukla And Others v. State Of U.P. And Others - WRIT - A No. - 28777 of 2007  RD-AH 18871 (14 December 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 02.11.2007
Delivered on 14.12.2007
Civil Misc. writ petition no. 28777 of 2007
Prof. Smt. Kalawati Shukla & others
State of U.P. and others.
A N D
Civil Misc. writ petition no. 28774 of 2007
Prof. Rajendra Prasad & others
State of U.P. and others.
Hon'ble Anjani Kumar, J.
Hon'ble Sudhir Agarwal, J.
1. Both these writ petitions involve common question of law and fact and, therefore, have been heard together and are being decided by this common judgment. However, for the purpose of narration of facts, writ petition no. 28777 of 2007 has been taken as leading case.
2. The petitioners, who were holding the office of Head of Department in various disciplines in Deen Dayal Upadhyaya University Gorakhpur (hereinafter referred to as "the University") have approached this Court under Article 226 of the Constitution of India, aggrieved by the order dated 20.06.2007 passed by the University, appointing some other teachers as Head of Department, replacing the petitioners, applying rotational system, pursuant to the Government Order dated 24.07.2001 and Executive Council's decision dated 23.08.2001.
3. The facts in brief, giving rise to the present dispute are, that, all the petitioners are senior most teachers/professors in various departments of the University as detailed below:-
Head of Department of
Prof. Smt. Kalawati Shukla
Prof. Shiv Shankar
Prof. Anirudh Prasad
Prof. Kaushal Kumar
Prof. Afganullah Khan
Prof. I.D. Mishra
Prof. M.M. Trivedi
Prof. Banarasi Tripathi
Prof. A.A. Ansari
Mathematics & Statistics
Prof. Manoj Kumar
4. The petitioners were working as Head of Department in accordance with statute 2.20 of the First Statutes of Gorakhpur University, 1977 (hereinafter referred to as the 'Statutes') which provides that seniormost teacher in each department of teaching in the University shall be Head of that Department. The State Government, however, issued an order dated 24.07.2001 (Annexure-2 to the writ petition) providing that considering the demand of teachers of the University that Head of Department should be made on rotational basis, the Government has decided that Head of Department should be appointed on rotational basis for a period of three years and relevant statute of the University in the light of the decision of the Government be accordingly amended. The Executive Council of the University considered the above Government Order in its meeting dated 23.08.2001 and decided to amend the statute 2.20 and to implement the decision of the State Government contained in the said Government Order by inserting statute 2.20 (8) in the first statutes of the University and also to amend statute 2.20 accordingly. It also decided to refer the matter to the State Government for approval of the amendment of the statute. It is not disputed that pursuant thereto no further action has been taken by the State Government and in fact statute 2.20 is still continuing as it was when the Government Order dated 24.07.2001 was issued and yet in the teeth of the provisions of the aforesaid statute the University has issued the impugned order dated 20.06.2007 removing petitioners from the office of the 'Head of Department' of the University and appointing other teachers as 'Head of Department' implementing rotational scheme as per G.O. Dated 24.07.2001.
5. It is contended that so long the statute is not amended, the petitioners cannot be deprived of right of functioning as 'Head of Department' being senior-most teachers in the concerned departments and action of the respondents, in particular, the University, in issuing the impugned order is patently illegal and without jurisdiction being contrary to the statute. It is also contended that Government Order dated 24.07.2001 as also the decision of the University would not have the effect of amending the statute automatically. So long the statute, in fact, is not amended as per the procedure prescribed under Section 50 of the U.P. State Universities Act, 1973 (hereinafter referred to as the "Act"), the petitioners cannot be denuded of their right to function as Head of Department of concerned department as per Statute 2.20.
6. On behalf of the University, respondents no. 3 and 4 have filed a counter affidavit and it is not disputed that under the existing statue 2.20 the senior most teacher is entitled to function as Head of the Department. However, it is stated that statute 2.20 was amended by Government Order dated 24.07.2001 which has been issued by the State Government exercising power under Section 50(6) of the Act and the said order has been issued after recommendation of the Chancellor of the University and has also been approved by Executive Council in its meeting dated 23.08.2001. It is further stated that pursuant to the Executive Council's decision dated 23.08.2001 the Registrar of the University has sent a letter dated 17.10.2001 to the Chancellor requesting to approve and notify the proposed amendment in statute 2.20 by substituting the same in the manner as stated in the said letter. It is said that after the letter, sent by the Registrar to the Chancellor, in many departments rotational system was given effect to by various orders filed as Annexure-CA-2 to CA-13 to the counter affidavit.
7. It is nobody's case that after Registrar sent the letter dated 17.10.2001, any amendment in the statute as provided under Section 50 of the Act has actually been made and on the contrary what has been contended is that the Government Order dated 24.07.2001 itself makes amendment in the statute 2.20.
8. Besides, the University has also raised a preliminary objection that the petitioners have statutory alternative remedy of approaching Chancellor under Section 68 of the Act and they have also submitted an application dated 21.06.2007 before the Chancellor, therefore, having availed the said remedy, they cannot be allowed to avail simultaneously two remedies and therefore, the writ petition is liable to be dismissed. Copy of the said letter dated 21.06.2007 has been filed as Annexure-CA-15 to the counter affidavit.
9. On behalf of private respondents, counter affidavit has been filed by respondent no. 7 and he has also taken similar stand as taken by the University.
10. We have heard learned counsels for the parties and peruse the record.
11. The short question up for consideration in this writ petition is whether statute 2.20 of the First Statute of the University stood amended by the Government Order dated 24.7.2001 though no amendment in the said Statute had been made by notification as required under section 50 of the Act.
12. The First Statutes of Gorakhpur University had been framed in 1977 in accordance with sub section (1) of Section 50 of the Act which provides that the First Statute of the University shall be made by the State Government by notification in the Gazette and in the case of any existing University, for so long as the First Statutes are not so made, the Statutes as in force immediately before the commencement of this Act, insofar as they are not inconsistent with the provisions of this Act, shall continue in force subject to such adaptations and modifications as may be necessary by the State Government by notification in the gazette. Power of amendment of the said Statutes was conferred upon the State Government, upto 31st December 1990, vide sub-section (1-A) of Section 50 and the said amendment was also to be made by notification in the gazette. The procedure for making amendment etc. in the Statutes for the period subsequent to 31st December 1990 has been provided under sub-section (2) to (7) of Section 50 of the Act. It would be appropriate to reproduce Section 50 as under:
"50. Statutes how made.--The First Statutes of the University shall be made by the State Government by notification in the Gazette and in the case of any existing University, for so long as the First Statutes are not so made, the Statutes as in force immediately before the commencement of this Act, insofar as they are not inconsistent with the provisions of this Act, shall, subject to such adaptations and modifications whether by way of repeal, amendment or addition as may be necessary or expedient, as the State Government may, by notification in the Gazette provide, continue in force, and any such adaptation or modification shall not be called in question.
(1-A) The State Government may by notification in the Gazette amend whether by way of addition, substitution or omission, the First Statutes at any time up to December 31, 1990 and any such amendment may be retrospective to a date nor earlier than the date of such commencement.
(2) Until the First Statutes of the Purvanchal University are made under this Section, the Statutes of the University of Gorakhpur, as in force immediately before the establishment of the said University shall apply to it subject to such adaptations and modifications as the State Government may, by notification, provide.
(2) The Executive Council may, at any time after December 31, 1990 make new or additional Statutes or may amend or repeal the Statutes referred to in sub-section (1) or sub-section (1-A).
(3) The Executive Council shall not propose the draft of any Statute affecting the status, power or constitution of any authority of the University until such authority has been given an opportunity of expressing its opinion upon the proposal and any opinion so expressed shall be in writing and shall be submitted to the Chancellor.
(4) Every new Statute or addition to a Statute or any amendment or repeal of Statute shall be submitted to the Chancellor who may assent to it or withhold his assent therefrom or remit it to the Executive Council for further consideration.
(5) A Statute passed by the Executive Council shall have effect from the date it is assented to by the Chancellor or from such later date as may be specified by him.
(6) Notwithstanding anything contained in the foregoing sub-section, the State Government may in order to implement any decision taken by it in the interest of learning, teaching or research or for the benefit of teachers, students or other staff or on the basis of any suggestion or recommendation of the University Grants Commission or the State or National Education Policy with regard to the qualifications of the teachers, require the Executive Council to make new or additional statutes or amend or repeal the Statutes referred to in sub-section (1) or sub-section (1-A) within a specified time and if the Executive Council fails to comply with such requirement the State Government may, with the assent of the Chancellor, make new or additional Statutes or amend or repeal the Statutes referred to in sub-section (1) or sub-section (1-A).
(7) The Executive Council shall have no power to amend or repeal the Statutes made by the State Government under sub-section (6) or to make new or additional Statutes inconsistent with such Statutes.
13. A perusal of the aforesaid provision also shows that though the Statutes may be amended or repealed by the Executive Council with the assent of the Chancellor but sub-section (6) of Section 50 empowers the Government to issue order to the Executive Council to make new or additional Statute or amend or repeal a Statute within a specified time in order to implement any decision taken by it in the interest of learning, teaching or research or for the benefit of teachers, students or the other staff or on the basis of any suggestion or recommendation of University Grants Commission or the State or National Education Policy with regard to qualification of teachers. It also provides that if Executive Council fails to comply with such requirement, the State Government may with the assent of the Chancellor, make new or additional Statute referred to in sub-section(1) or sub-section (1-A). It is not disputed that Statute 2.20 of the Statutes of the University provides that the senior-most teacher in each department of teaching in the University shall be the Head of that Department. It would be appropriate to reproduce the same as under:
"2.20. The senior-most teacher in each department of teaching in the University shall be the Head of that Department."
14. Now we come to the Government Order dated 24.7.2001 which as claimed by the respondents, is the order which has the effect of amendment of Statute 2.20. A perusal of Government Order dated 24.7.2001 shows that the same had been issued by the State Government to all Vice-Chancellors of the Universities providing roster of three years period for appointment of Head of Department. Para 2 of the said order directs various Universities to take action for appropriate amendment in the Statute treating the decision of the Government under Section 50(6) of the Act, and, paragraph no.3 shows that the said amendment was to be made within thirty days failing which the State Government would proceed for amendment of the Statute at its own end with the assent of the Chancellor as provided under Section 50(6) of the Act. Therefore, a complete reading of the Government Order dated 24.7.2001 leaves no manner of doubt that it is not an act of State Government making amendment in Statutes of the University with respect to appointment of Head of Department and on the contrary, it only communicates its decision for a periodical appointment of Head of Department, and, directed the Executive Council of various Universities to take steps for making amendment in the relevant Statute within thirty days, failing which the State Government shall proceed as provided under Section 50(6) of the Act. The said Government Order, therefore, cannot be said to be an amendment in the Statute on its own and it is only a direction by the State Government to the Executive Council to take steps for amendment of the Statute. It is not disputed that pursuant to the Government Order dated 24.7.2001 the Executive Council of the University though convened its meeting on 23.8.2001, resolved to amend Statute 2.20 as per the directions of the Government, and a draft amendment of the Statutes was also referred to Chancellor for his approval vide University's letter dated 17.10.2001 but none of the parties has brought on record any material to show that either the Chancellor assented the proposed amendment of the Executive Council or it took any action otherwise, as provided under Section 50(4) of the Act. An amendment in the Statutes as resolved by the Executive Council can only be given effect to from the date it is assented by the Chancellor or from such later date as may be specified by him but unless it is assented by the Chancellor, it cannot be said that the resolution of the Executive Council or its proposal has attained the status of a Statute having the effect of modifying or amending the Statute or otherwise as resolved by Executive Council. We made repeated queries from the learned counsel for the parties and we have been informed that except the fact that the matter was referred to the Chancellor, it appears, no further action was taken by the Chancellor at his end in this matter.
15. Now coming to the action of the Government, except letter dated 24.7.2001 the State Government has not taken any further steps for amending the Statute 2.20 as provided under Section 50(6) of the Act, in case the Executive Council has failed to comply with the directions of the State Government with respect to amendment etc. of the Statutes. The Government Order dated 24.7.2001 was the first step of the Government directing the Executive Council for amendment in the Statutes but in case of its failure to do so within 30 days as directed by the State Government, it appears that the State Government also took no further action in the matter. The counter affidavit of the State Government is totally silent on this aspect and, therefore, this Court has no other option but to hold that except of issuance of letter dated 24.7.2001, the State Government did not take any further step for making amendment of the Statutes in the manner as provided in the latter part of sub-section (6) of Section 50 of the Act, i.e., by issuing order with the assent of the Chancellor to make new or additional Statute or amend or repeal, as the case may be. In the absence of any such action, in our view, it cannot be said that the Government Order dated 24.7.2001 can be read to have the effect of amending the Statute 2.20 in the manner, the Government suggested in the said order. Unless a Statute duly framed in exercise of statutory powers is altered in the manner and procedure prescribed in the Act, the Statute cannot be said to have changed, altered or amended and it will continue to operate without any alteration.
16. A Division Bench of this Court in Ankur Yadav Vs. State of U.P. and others decided on 20.9.2007 (Civil Misc. Writ Petition No. 742(S/B) of 2007 in which one of us (Hon'ble Sudhir Agarwal, J.) was a member, considered a similar kind of dispute regarding amendment in the Statutes and observed :
"...........the Statutes of the University framed under the Act would govern the field and so long as the Statutes are not amended, no person can be appointed in the University governed by the Act and the Statutes framed thereunder by ignoring the qualification prescribed thereunder. No amount of proposal, acceptance, waiver, acquiescence etc. either by the University or the State Government would have the effect of amending the Statute unless the Statute as such is amended in accordance with the procedure prescribed under Seciton 50 of the Act..........
It is not disputed that the First Statute of the University was not amended in the manner provided under Section 50 of the Act till the date the petitioner was appointed and thus principle of estoppel, waiver or acquiescence would not apply against law.............."
17. It is well settled that when law requires something to be done in a particular manner, anything otherwise is prohibited and would have no effect in the eyes of law. For amendment of the Statutes when a specific procedure is prescribed in the Act itself, the same is to be observed strictly and substantially. The First Statutes of the University is a statutory provision and the same cannot be altered or modified, i.e., amended etc. except in the manner prescribed in the Act. The mere fact that after 2001, a number of appointments were made as Head of Department on rotational basis, by itself, would not make any difference in the law, inasmuch as, no amount of estoppel and acquiescence would apply in such kind of cases where right of a person is governed by the specific provision of the Act and Statutes. The appointment to the post of Head of Department in the Universality is governed by statutory provisions, namely, Statute 2.20 and unless the same is amended in accordance with the procedure prescribed in the Act, it has to be observed and complied with, and, any violation thereof shall vitiate the order which is in the teeth of the statutory provisions as existing.
18. In this view of the matter, we have no hesitation in holding that the impugned order dated 20th June 2007 is wholly illegal and without jurisdiction and also contrary to Statute 2.20 of the Statutes of the University.
19. In the result, the writ petitions are allowed. The impugned order dated 20.6.2007 , passed by the University is quashed. The respondents are restrained from interfering in the functioning of the petitioners as Head of Department in the concerned Discipline till the Statute is amended and the position of the petitioners is altered otherwise, in accordance with law.
20. The writ petitions succeed with costs which is quantified at Rs. 5000/- in each petition payable by the University.
Dated: December 14; 2007
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