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RAVINDRA KUMAR SRIVASTAVA AND OTHERS versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Ravindra Kumar Srivastava And Others v. State Of U.P. And Others - WRIT - A No. 66173 of 2005 [2007] RD-AH 9942 (23 May 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No.66173 of 2005

Raghvendra Kumar Srivastava and others

Versus

State of U.P. and others

Connected with

Civil Misc. Writ Petition No.68865  of 2006

Smt. Reksha Sonkar and others

Versus

University of Allahabad, through its Registrar and others

Civil Misc. Writ Petition No.22839 of 2007

Shiv Prasad and another

Versus

University of Allahabad, through its Registrar and others

Hon'ble V.K. Shukla, J.

In this bunch of writ petitions, petitioners have approached this Court for quashing of order dated 16.07.2005 passed by Director of Education (Higher), U.P. at Allahabad, rejecting the matter of grant of approval to class IV appointments, recommended by the Principal, C.M.P. Degree College, Allahabad.

Brief background of the case is that in the district of Allahabad, there is an associated College known as C.M.P. Degree College, Allahabad, associated to University of Allahabad. Said College issued advertisement published in daily news 'Amar Ujala' and 'Amrit Prabhat' dated 27.09.2003, inviting applications for appointment on class IV posts in the institution concerned. The applications were required to reach by 15.10.2003 to the Principal of the institution, by means of registered post and the selection was to be held strictly as per provisions of the U.P. State Universities Act, 1973 and the First Statute of Allahabad University, Ordinances and relevant Government Orders, which covered the field of reservation. The petitioners claim that they have been performing and discharging duties as class IV employees on daily wage basis in the institution concerned, and in this background, after the said advertisement had been issued, they claim to have applied for consideration of their claims for being appointed as class IV employees. Thereafter, it has been asserted that Principal of the College issued interview letter on 18.10.2003 to 375 candidates for 17 posts to be filled up. Petitioners have contended that interview was held by Selection Committee on 30.08.2004, comprising of  Principal and two Readers of the College, and thereafter selection proceedings had been finalized and the papers were forwarded to the Director of Education (Higher), which were received in his office on 11.04.2005, for the purpose of according approval  in terms of the provisions as contained  under Statute No.25.04 of the First Statute of the University of Allahabad. After the said papers had been transmitted, the Director of Education (Higher) made various queries from the Management of the institution on 04.05.2005. The institution in question thereafter on 24.05.2005 submitted its reply and requested that the approval be accorded. Thereafter, Director of Education (Higher) on 16.07.2005 proceeded to pass order disapproving the appointments. At this juncture, present writ petition has been filed assailing the validity of decision taken by  Director of Education (Higher).

Sri V.C. Mishra, Senior Advocate, assisted by Sri Vivek Mishra, Advocate; Sri G.N. Verma, senior Advocate, assisted by Dr. Madhu Tandon, Advocate, and Sri V.D. Ojha, Advocate, contended with vehemence that in the present case, Director of Education (Higher) has totally misdirected himself in passing the order, and the grounds on which order of disapproval has been passed are unsustainable grounds, whereas in the facts and circumstances of the case, under Statute 25.04, this was the case of  deemed approval and once it was  a case of deemed approval, it was not at all open to the Director of Education (Higher) to disapprove the appointment of petitioners, as has been sought to be done in the present case, as such writ petitions deserve to be allowed with direction to respondents to permit the petitioners to function as class IV employees and their salaries be ensured.

Countering the said submission, Sri A.B.L. Gaur, Senior Advocate, representing the University of Allahabad and Sri Ashok Khare, Senior Advocate, for the proposed respondents, contended that in the present case, entire selection proceedings are nothing but an outcome of manipulation  and manoeuvring and sham proceedings, and coupled with this, after enforcement of University of Allahabad Act, 2005 with effect from 23.06.2005, no such appointments can be made, as such writ petition, as has been framed and  drawn, is liable to be dismissed.

After respective arguments have been advanced, factual position which emerges is to the effect that in the present case at the point of time when selection proceedings were undertaken, appointment on class IV posts was to be dealt with strictly in consonance with the provisions as contained under  the First Statute of the University of Allahabad. The first question to be adverted to in the facts and circumstances of the present case is as to whether the provisions of deemed approval can be made applicable and pressed into service, specially when within period of two months from the date of receipt of of papers, objections had been raised by the Director of Education (Higher), and to which reply had been submitted, and thereafter order of disapproval had been passed. For ready reference, the relevant Statutes as contained under Chapter XXII Part I of the First Statute of the University of Allahabad are to be looked into. Relevant Statute Nos. 24.01, 25.04 and 25.06  are being quoted below:

"24.01.  Subject to the provisions of these  Statutes, the appointment to the post of class three employees shall be made by the Management of the College --- and appointment to the post of class four employees shall be made by the Principal.  

25.04.   Appointment of employees shall be subject to the approval of the Director of Education (Higher Education), or an officer authorized by him in this behalf. If the approving authority does not within two months from receiving the proposal for approval intimate its disapproval or does not send any intimation in respect of such proposal to the appointing authority, the approving authority shall be deemed to have approved the appointment.

25.06. (4)  Name of candidates for appointment to a post in Class Four shall be obtained from the concerned District employment Office. In the event of non-availability of suitable candidate in such manner, the post may be advertised."

A bare perusal of Statute 24.01 would go to show that appointment to the post of class IV employees shall be made by the Management of the College, and appointment to the post of class IV employees shall be made by the Principal. As far as class III posts are concerned, various Committees have been provided for, which are entitled and competent to make appointment against class III posts, namely Committee constituted under /statute 25.06 (1) and 25.06 (2). As far as class IV posts are concerned, qua the same  there is no provision of constitution of any Selection Committee provided for under the Statute. Statute 25.04 clearly provides that appointment of employees shall be subject to the approval of the Director of Education (Higher Education), or an officer authorized by him in this behalf. It further provides that if the approving authority does not within two months from receiving the proposal for approval intimate its disapproval or does not send any intimation in respect of such proposal to the appointing authority, the approving authority shall be deemed to have approved the appointment.    

Here, in the present case, undisputed position is that papers in respect of selection and appointment of petitioners were transmitted and received in the office of the Director of Education (Higher) on 11.04.2005. On 04.05.2005 i.e. within two months from the date of receipt queries were made regarding selection of petitioners, qua which reply was submitted on 24.05.2005, and thereafter on 16.07.2005, order of disapproval was passed. Statute 25.04 quoted above, qua deemed approval, does not come to the rescue of petitioners, inasmuch as, question of deemed approval would have come into play if within two months from the date of receipt of proposal,  any intimation in respect of such proposal had not been sent to the Appointing Authority, then Approving  Authority would have been deemed to have approved the appointments in the absence of non-communication of disapproval. Deeming provisions by fiction of law provides for fact or a thing which has actually not happened, but same is presumed to have taken place. Here, it is true that within two months from the proposal, order of disapproval had not been intimated, but as per the alternative clause, namely "or does not send any intimation in respect of such proposal to the appointing authority", clearly dilutes the effect of the said provision once intimation within two months, pointing out shortcomings, had been sent by the Approving Authority to the Appointing Authority, and thereafter reply had been submitted, and thereafter, order in question had been passed. Petitioners cannot take advantage of Statute 25.04. There is no inaction on the part of Director of Education (Higher), as within time limit provided for in the Statute, intimation in respect of proposal had been sent to the appointing authority, pointing out shortcomings  in the said selection proceeding, and thereafter, after considering the reply order has been passed.

Under Statute 25.01, Appointing Authority of class IV employees is the Principal and nowhere under U.P. State Universities Act or under the First Statute of the University of Allahabad, any provision is there which empowers the Principal to constitute Selection Committee in the matter of selection and appointment of class IV employees. Here, in the present case, Principal, who is admittedly the Appointing Authority instead of undertaking selection process himself, has proceeded to constitute Selection Committee comprising of himself and two Readers. Constitution of Selection Committee is not at all prescribed by law. In this backdrop, selection and appointment made by the Selection Committee, cannot be subscribed by any means.

In the present case, order impugned reflects that the Director of Education (Higher) while passing order dated 16.07.2005 has proceeded to mention that Principal of the institution has not proceeded to fill up the post as  per permission which had been accorded for and further has proceeded to mention that proposed selection of  17 incumbents was not as per law, as such the same has been disapproved. In the event permission had been accorded by the Director of Education (Higher) for filling up the posts, which were in existence in the institution, then selection and appointment ought to have been made strictly in consonance with the permission which had been accorded for.  Director of  Education (Higher) has mentioned that permission which was accorded for on 14.08.2003, 27.08.2003 and 10.09.2003 was in respect of filling up backlog reserved vacancies, but the same has not been followed. Letter of permission dated 14.08.2003 and 10.09.2003 forms part of record of Civil Misc. Writ Petition No.66173 of 2005 at pages 35 and 37 of the paper book. Said permission letters are specific and categorical, as in column  No. 6, specific condition has been mentioned that said vacancies are to be filled up from amongst reserved backlog vacancies. Once terms and conditions for filling  vacancies were clear and categorical, that same is to be filled up from amongst reserved backlog vacancies, then it was not at all open to the Principal of institution, to unilaterally change the terms and conditions of permission and proceed to make selection. In case the Principal of the institution had strong feeling that there were no backlog reserved vacancies or there were only few reserved backlog vacancies, then in that event request ought to have been made to Director of Education (Higher) for modification in the order of permission dated 14.08.2003, 27.08.2003 and 10.09.2003, but in absence of said letter being modified/altered, exercise of filling the post, from open category was not at all permissible. Advertisement issued is inherently defective on the face of it, as it does not mention the exact number of vacancies, and the number of vacancies reserved. Once permission was given for filling backlog reserved vacancy, then advertisement ought to have mentioned that special drive was being undertaken to fill up backlog reserved vacancies and no exercise was permissible, on this advertisement which was totally out of context. However, it has been sought to be contended by giving chart that in all there are 93 posts in the institution, out of which 65 have been filled up and 28 posts were still lying vacant out of which 17 posts have been filled up and 11 posts are still lying vacant. It has been further sought to be contended that  out of 17 appointments, 8 are general and 9 have been filled up from amongst the candidates of reserved category  as per reservation, and thus the selection proceedings cannot be faulted, and comparative chart shows that reservation quota has not at all been ignored. There is complete misconception in the mind of petitioners, as no details have been furnished, as to how many candidates, in spite of the fact that they were from SC/OBC category, had been selected as general category candidates. The chart in question does not give clear or correct picture, and in fact based on the same, main issue is being sought to be side tracked. Once permission was to fill backlog reserved vacancies, selection in hand, cannot be subscribed from any quarter, whatsoever, Director of Education (Higher) has rightly proceeded to refuse approval.

Alternatively, there is one more aspect of the matter. At the point of time when selection proceedings were undertaken, institution in question was associated College, associated to Allahabad University, as per provisions contained under U.P. Stare Universities Act, 1973. Funding agency qua these appointments/posts was the State Government. After promulgation of University of Allahabad Act, 2005 pursuant to Notification dated 23.06.2005, entire status of the University as well associated Colleges have changed. On 14.07.2005, which is the appointed date, C.M.P. Degree College became constituent College of the University of Allahabad, in terms of Sectioin 2 (f) of the University of Allahabad Act, 2005. As per Section 4 of the said Act, University of Allahabad in the State of Uttar Pradesh, established under the Uttar Pradesh Universities Act, 1973, has been established as a body corporate under this Act having perpetual succession and a common seal with right to sue and be sued by the said name. As per Section 5 of the said Act, on and from the appointed day, any reference to the University of Allahabad in any law (other than this Act) or in any contract or other instrument shall be deemed as a reference to the  University; and all rights and liabilities of the University of Allahabad shall be transferred to, and be the rights and liabilities of the University. Section 7 deals with the power of the University. Therein University has been empowered to create posts, administrative, ministerial and other posts and to make appointments thereto, and to lay down conditions of service of all categories of employees, including their Code of conduct. Sub-section (2) of Section 45  and sub-section (2) of Section 46,  deal with transitional provision and saving provision, which read as follows:

"45 (2)  Till such time as the First Ordinances are not made under sub-section (2) of Section 29, in respect of the matters that are to be provided for by the Ordinances under this Act and Statutes, the relevant provisions of the Statutes and the Ordinances made immediately before the commencement of this Act under the provisions of the Uttar Pradesh State Universities Act, 1973 shall be applicable in so far as hey are not inconsistent  with the provisions of this Act and the Statutes.  

46. (1) In the Uttar Pradesh, State Universities Act, 1973,-

(a)  the word "Allahabad", except in clause (b) of Sub-section (2) of Section 12,  sub-section (1) of Section 31B, clause (b) of Sub-section (1) of Section 74, clause (j) of Sub-section (3) of Section 74, and entries relating to  Serial No.5 in the Schedule, wherever, it occurs, shall be omitted.

(b)  in the Schedule, Serial No.2 and the entries relating thereto shall be omitted.                        

(2)    Notwithstanding such omission,-

    (a)  all appointments made, orders issued, degrees and other distinctions conferred,diplomas and certificates awarded, privileges granted, or other things done (including the registration of graduates) under the Uttar Pradesh, State Universities Act, 1973, shall be deemed to have been respectively made, issued, conferred, awarded, granted or done under the corresponding provisions of this Act and, except as otherwise provided by or this Act or the Statutes, continue in force unless and until they are superseded by any order made under this Act or the Statutes; and  

    (b) all proceedings of Selection Committees for the appointment or promotion of teachers that took place before the commencement of this Act and all actions of the Executive Council in respect of the recommendations of such Selection Committees where no orders of appointment on the basis thereof, were passed before the commencement of this Act shall, notwithstanding that the procedure for selection has been modified by this Act, be deemed to have been valid but further proceedings in connection with such pending selections shall be taken in accordance with the provisions of this Act, and be continued from the stage where they stood immediately before such commencement, except if the concerned authorities take, with the approval of the Visitor, a decision to the contrary."      

        A bare perusal of the aforesaid provisions of sub-section (2) of Section 45 would go to show that till such time as the First Ordinances are not made under sub-section (2) of Section 29, in respect of the matters that are to be provided for by the Ordinances under this Act and Statutes, the relevant provisions of the Statutes and the Ordinances made immediately before the commencement of this Act under the provisions of the Uttar Pradesh State Universities Act, 1973 shall be applicable in so far as hey are not inconsistent  with the provisions of this Act and the Statutes.  Further sub-section (2) of Section 46 covers the field of actions saved, by providing that all appointments made, orders issued, degrees and other distinctions conferred,diplomas and certificates awarded, privileges granted, or other things done (including the registration of graduates) under the Uttar Pradesh, State Universities Act, 1973, shall be deemed to have been respectively made, issued, conferred, awarded, granted or done under the corresponding provisions of this Act and, except as otherwise provided by or this Act or the Statutes, continue in force unless and until they are superseded by any order made under this Act or the Statutes. Clause (b) of sub-section (2) of Section 46 of 2005 Act provides that all proceedings of Selection Committees for the appointment or promotion of teachers that took place before the commencement of this Act and all actions of the Executive Council in respect of the recommendations of such Selection Committees where no orders of appointment on the basis thereof, were passed before the commencement of this Act shall, notwithstanding that the procedure for selection has been modified by this Act, be deemed to have been valid but further proceedings in connection with such pending selections shall be taken in accordance with the provisions of this Act, and be continued from the stage where they stood immediately before such commencement, except if the concerned authorities take, with the approval of the Visitor, a decision to the contrary.

          On parameters of sub-section (2) of Section 45  of the University of Allahabad Act, 2005 after the appointed day i.e. 14.07.2005, the Director of Education (Higher) will cease to have any authority in respect of selection and appointment of class II and Class IV employees of constituent college, as till such time as the first Ordinances are not made, under sub-section (2) of Section 29 of the University of Allahabad Act, 2005, in respect of matters provided for by the Ordinances under this Act and Statutes, the relevant provisions of U.P. State Universities Act, 1973, shall be applicable in so far as they are not inconsistent with the provisions of this Act, 2005. University of Allahabad Act, 2005 does not envisage any role to be played by State Educational Authorities, in the matter of selection/appointment which is inclusive of approval, as such on the enforcement of  University of Allahabad Act, 2005, any role of State Educational Authorities, is inconsistent to scheme of things provided for, and by operation of law the University of Allahabad and the constituent colleges, ipso facto goes outside the authority of the State Authorities.  

   Under sub-section (2) of Section 46 under clause (a) and (b) all actions taken as per the provisions of U.P. State Universities Act, 1973 and the First Statute of the then University of Allahabad, which are saved has been provided for. Under University of Allahabad Act, 2005, no corresponding provision has been incorporated in respect of appointment of Class III and Class IV employees of constituent colleges, nor is there any provision in the First Statute, and till date Ordinances have not been framed. The actions which have been saved under sub-section (2) of Section 46 has been clearly and categorically provided for , petitioners' appointment does not fall in that category, and as such net consequence of the same is that they automatically stand wiped of, without being saved.    

       Consequently, even otherwise, petitioners, in the present case, after enforcement of University of Allahabad Act, 2005,  on the basis of earlier selection proceedings, no appointment orders are permissible. In this background from all counts, writ petitions lacks substance and the same are dismissed.          

23.05.2007

SRY


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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