Abhinava Sinha vs Bhatkhande Music Institutue & Ors.

Hon'Ble Irshad Ali, J.

Heard Sri I.M. Pandey, learned counsel for the petitioner, Ms. Isha Singh, learned counsel for respondent Nos.1 & 2 and learned Standing Counsel for respondent No.3 – State.

The present writ petition has been filed on following prayer:

Factual matrix of the case is that the petitioner was initially appointed on ad hoc basis vide appointment order dated 07.01.1989. Subsequently, he was appointed on regular basis against a substantive post vide order dated 05.03.1992. The said regular appointment was made pursuant to the recommendation of the Uttar Pradesh Public Service Commission.

Thereafter, vide order dated 21.08.1996, the petitioner was promoted from the post of Lecturer to the post of Assistant Professor (Sitar) on the basis of the recommendations of a duly constituted Departmental Promotion Committee.

Vide order dated 18.03.2000, the salary of the petitioner was fixed in the pay scale of Rs.12,000–18,300/-, by treating Rs.12,000/-, being the minimum of the said pay scale, as his basic salary.

On 24.10.2000, the Government of India issued a notification conferring upon Bhatkhande Sangeet Mahavidyalaya, Lucknow, the status of a deemed university under Section 3 of the University Grants Commission Act. Consequent thereto, the Government character of the Institute came to an end and the Sangeet Mahavidyalaya was transferred to a society constituted under the name and style of “Bhatkhande Music Institute”. The transfer was effected by the State Government vide order dated 18.04.2001, whereby the assets and liabilities of the Mahavidyalaya were deemed to have been transferred to the newly constituted Society.

The Government Order dated 18.04.2001 also made specific provisions regarding the service conditions of the teaching and non-teaching staff working in the erstwhile Sangeet Mahavidyalaya. Clause 3 thereof provided for obtaining options from the existing staff members for transfer of their services to the newly constituted Society. It was further provided that the Society would neither take any decision nor draw any proceedings which would have the effect of lowering the status of the existing staff or adversely affecting the benefits available to them while they were serving as government servants.

The aforesaid Government Order further provided that, in relation to conferment of any benefit or facility in future, the Society would take a decision in accordance with the applicable Rules and only after obtaining the approval of the State Government.

Pursuant to the Government Order dated 18.04.2001 and while inviting options from the existing staff of the Sangeet Mahavidyalaya, an Office Memorandum dated 25.04.2001 was issued. The said memorandum provided that the service conditions and service benefits of the existing staff members would not be made less favourable or adverse to those which they were enjoying while serving as government servants in the Mahavidyalaya. It was also provided that, in respect of future facilities, the Society would take a decision after obtaining the approval of the State Government.

The Office Memorandum dated 25.04.2001 further provided that, in the event of future recruitment, the standards prescribed by the University Grants Commission would be applicable.

In view of the provisions contained in the Government Order dated 18.04.2001 and the Office Memorandum dated 25.04.2001 and as the service conditions and benefits of the existing staff were not to be adversely affected, the petitioner exercised his option for transfer/absorption of his services in the newly constituted Society.

It is also relevant that, prior to the transfer of the Mahavidyalaya to the newly constituted Society, the State Government had issued an order dated 25.01.2000 whereby certain posts were upgraded.

Thereafter, the Board of Management of the newly constituted Society, in its meeting held on 05.05.2001, considered the regularization of the petitioner's services and resolved that his services be regularized on the post of Reader (Sitar). Pursuant to the said decision, the petitioner's services were regularized with effect from 05.05.2001 vide office order dated 16.05.2001.

Subsequently, in its meeting held on 15.05.2004, the Board of Management of the Institute determined the teaching posts in various categories. It was decided that there were two sanctioned posts of Reader, one being Reader (Sitar) and the other Reader (Violin).

Thereafter, the respondents issued an advertisement dated 04.07.2004 inviting applications for various posts of Professor, Reader and Lecturer, including the post of Reader (Sitar).

In connection with the aforesaid developments, the petitioner was served with a show-cause notice dated 23.04.2005 requiring him to submit his reply regarding the applicability of the standards prescribed by the University Grants Commission for further appointment/promotion in terms of the Government Order dated 18.04.2001. The notice further stated that the petitioner's regularization had allegedly been made contrary to the provisions of the Government Orders dated 25.01.2000 and 18.04.2001. The notice also referred to recommendations for placing the petitioner in the position in which he stood on 24.01.2000. The petitioner submitted his reply to the said show-cause notice on 07.05.2005.

Aggrieved by the advertisement dated 04.07.2004 and the show-cause notice dated 23.04.2005, the petitioner instituted Writ Petition No. 699 (S/B) of 2005 before this Court. In the said writ petition, this Court passed an interim order dated 13.05.2005 directing that the post of Reader (Sitar) should not be filled up pursuant to the advertisement dated 04.07.2004. At the same time, the respondents were permitted to consider and decide the objections submitted by the petitioner against the show-cause notice dated 23.04.2005.

Thereafter, the Vice-Chancellor of Bhatkhande Music Institute passed the impugned order dated 18.05.2005. By the said order, referring to the directions of this Court in Writ Petition No. 699 (S/B) of 2005, the decision taken in the special meeting of the Screening Committee held on 16.05.2005 and the subsequent decision of the Board of Management dated 18.05.2005, it was provided that the petitioner would be permitted to work on the regular post of Lecturer (Sitar) which he had held as on 24.01.2000. It was further directed that, in compliance with the interim order dated 13.05.2005, the post of Reader (Sitar) held by the petitioner would remain vacant until further orders of this Court.

Aggrieved by the order dated 18.05.2005 and the consequential alteration in the petitioner's status from Reader (Sitar) to Lecturer (Sitar), the petitioner approached this Court by filing the present writ petition. The petitioner seeks, inter alia, quashing of the impugned order dated 18.05.2005; a direction restraining the respondents from giving effect to the said order; and a direction permitting him to continue to work on the post of Sitar/Reader (Sitar) in Bhatkhande Music Institute, Lucknow, with salary and all consequential benefits. The petitioner has also sought such other relief as may be deemed just and proper, along with costs of the proceedings.

Submission of learned counsel for the petitioner is that the impugned order dated 18.05.2005 passed by respondent No.2 is wholly illegal, arbitrary, unreasonable and unsustainable in law. The petitioner had submitted his detailed reply dated 07.05.2005, but the contents thereof appear to have been completely ignored while passing the impugned order. The authority concerned was required to consider the petitioner's reply and record appropriate reasons before taking any adverse decision affecting his existing service status and accrued benefits. The failure to consider the petitioner's reply demonstrates non-application of mind and renders the impugned order contrary to the principles of fairness and reasonableness. The impugned action, therefore, is violative of Articles 14 and 16 of the Constitution of India.

He next submitted that the very order by which Bhatkhande Sangeet Mahavidyalaya was conferred the status of a deemed university contains a specific protection in favour of the teachers serving the institution, namely, that they would not be deprived of the benefits which they were enjoying at the time of their transfer to the services of the Institute. The petitioner had already acquired the benefit of regularization through a decision of the competent authority. Such an accrued service benefit could not subsequently have been withdrawn or cancelled by the impugned order without lawful authority and without following the procedure prescribed by law.

He further submitted that the Government Order dated 25.04.2001 also makes it clear that the service conditions and service benefits of the staff members of the Institute were not to be made less favourable or adverse to those available to them while they were serving as Government servants in the Sangeet Mahavidyalaya. The said Government Order further contemplated application of the prescribed standards to future recruitment and appointments. Consequently, the provisions of the said Government Order could not legitimately be employed retrospectively for nullifying or cancelling the regularization already granted to the petitioner on the post of Reader.

Next submission is that the service history of the petitioner demonstrates that he was initially promoted as Assistant Professor (Sitar) on ad hoc basis vide order dated 21.08.1996. Thereafter, pursuant to Government Order dated 25.01.2000, the post of Assistant Professor was upgraded to the post of Reader and the corresponding pay scale of Rs.12,000–18,300 was made available to the petitioner. The said pay scale was, in fact, extended to the petitioner vide order dated 18.03.2000. Thus, the petitioner had already been working in the upgraded post and had been extended the corresponding service benefits much prior to the impugned action.

He submitted that, thereafter, the Board of Management of the Society, in its meeting held on 05.05.2001, specifically considered the question of regularization of the petitioner's services and took a conscious decision to regularize him on the post of Reader (Sitar). Pursuant to the said decision, the petitioner's services were regularized with effect from 05.05.2001. Once such decision had been taken by the competent Board of Management and had culminated in an order of regularization, the same could not have been subsequently cancelled in an arbitrary manner, particularly by an improperly constituted or otherwise defective decision-making body.

He submitted that the petitioner's contention is further fortified by the treatment accorded to similarly situated employees. In similar circumstances, an order reverting Smt. Bina Singh was passed pursuant to the decision of the Board of Management taken in its meeting dated 18.05.2000. When the said order was challenged before this Hon'ble Court, this Hon'ble Court, while entertaining her writ petition, was pleased to pass an interim order dated 15.06.2005 staying her reversion. The aforesaid circumstance demonstrates that the issue concerning withdrawal of such service benefits was itself the subject matter of judicial consideration and that the petitioner's case also required consideration in accordance with the principles of fairness and equality.

The submission is that the principal basis disclosed in the impugned order for interfering with the petitioner's regularization is that, according to the Government Order dated 18.04.2001, all service benefits, including regularization, were required to conform to the standards prescribed by the University Grants Commission and that the petitioner's regularization as Reader, having allegedly not been made in accordance with the instructions contained in the said Government Order, could not be treated as lawful. The impugned order further proceeds to state that the petitioner could be permitted to continue only on the post on which he had been regularly appointed and that, for obtaining any future benefit, he would be required to undergo the procedure prescribed by the University Grants Commission. The aforesaid reasoning, however, proceeds upon an erroneous interpretation and retrospective application of the Government Order dated 18.04.2001.

He submitted that a proper reading of Clause 5 of the Government Order dated 18.04.2001 makes it clear that the standards prescribed by the University Grants Commission were intended to govern future recruitments, whether by way of direct appointment or promotion. The requirement was, therefore, prospective in its operation. The said provision could not be construed as authorizing the retrospective cancellation of an appointment, upgradation or regularization which had already taken place before issuance of the Government Order. The impugned order, insofar as it seeks to apply the said Government Order to an already accrued service benefit of the petitioner, is therefore contrary to the plain purport of the Government Order itself.

He submitted that, in any event, the petitioner's post of Assistant Professor had already been upgraded to the post of Reader and the corresponding pay scale of Rs.12,000–18,300 had already been extended to him before the issuance of the Government Order dated 18.04.2001. Thus, the petitioner had already acquired the status and benefits attached to the upgraded post prior to the Government Order upon which reliance has been placed in the impugned order. Unless the earlier order of upgradation was lawfully rescinded or cancelled in accordance with law, the subsequent Government Order could not be invoked as a device for retrospectively taking away the benefit already conferred upon the petitioner.

He submitted that the petitioner's services were specifically regularized by the Board of Management of the then Bhatkhande Sangeet Sansthan in its meeting held on 05.05.2001, and pursuant thereto an order dated 16.05.2001 was issued regularizing the petitioner's services with effect from 05.05.2001. The said regularization was, thus, the consequence of a conscious decision taken by the competent authority and was not an automatic or inadvertent grant of benefit. The regularization order was issued after the Government Order dated 18.04.2001, yet the impugned order seeks to invalidate the regularization by relying upon the same Government Order. Such an approach is legally untenable, particularly when the Government Order relied upon was intended to regulate future appointments and promotions. The distinction between future recruitment or promotion on the one hand and regularization of an employee already continuously working on the post on the other has not been appreciated in the impugned order.

He submitted that the petitioner had continuously worked as Assistant Professor/Reader (Sitar) from 21.08.1996 and had, thus, rendered approximately nine years of service on the relevant post by the time the impugned order came to be passed. The regularization granted to him in 2001 was, therefore, not a case of a fresh recruitment to a future vacancy, but was a recognition and regularization of his existing service. The respondents could not equate the petitioner's case of regularization with a fresh appointment or promotion and apply the conditions governing future recruitment retrospectively to defeat the service benefits already extended to him.

He submitted that the Institute subsequently framed the Classification, Procedure of Appointment and Service Conditions Bye-laws, 2002 in exercise of the powers vested in it under Clause 26 of the Rules of the Society. Even assuming that the said Bye-laws were applicable to the petitioner, they could operate only prospectively and subject to protection of the service benefits which had already accrued to the petitioner prior to their framing. A subsequent statutory, regulatory or administrative framework cannot ordinarily be used to retrospectively divest an employee of benefits, which had already been validly conferred upon him under the then prevailing orders and decisions of the competent authority, particularly in the absence of any express provision authorizing such retrospective withdrawal.

He further submitted that the very manner in which the impugned decision was taken by the Board of Management also renders the same open to serious legal objection. The decision cannot be characterized as a unanimous decision of the Board of Management when, out of eight members constituting the Board, only two members, namely the Vice Chancellor and one other member, are stated to have taken the impugned decision in the meeting held on 18.05.2005. The validity of the decision-making process and the competence of the body which purported to take the decision were, therefore, required to be examined before the petitioner's existing service rights could be withdrawn. In the absence of a lawful and duly constituted decision of the competent authority, the impugned action cannot be sustained.

He submitted that the respondents, while passing the impugned order, have failed to appreciate the cumulative effect of the petitioner's prior appointment, his promotion/upgradation as Assistant Professor, subsequent upgradation of the post to Reader, grant of the corresponding pay scale, decision of the Board of Management dated 05.05.2001 and consequential regularization order dated 16.05.2001. These successive orders and decisions demonstrate that the petitioner had acquired a settled service status before the impugned order was passed. The respondents could not have brushed aside these orders merely by placing an erroneous and retrospective interpretation upon the Government Order dated 18.04.2001.

His submission is that the impugned order is further vitiated by non-application of mind inasmuch as the specific reply submitted by the petitioner on 07.05.2005 has not been meaningfully dealt with. Where an authority proposes to take an action having civil consequences, it is incumbent upon such authority to consider the objections and material placed by the affected employee and to pass a reasoned order. Failure to consider the petitioner's defence makes the decision arbitrary and contrary to the basic requirements of fairness in administrative action.

His submission is that the impugned action also suffers from the vice of arbitrariness because the respondents have sought to deprive the petitioner of a benefit which had already been conferred upon him by the competent authority without demonstrating any lawful basis for retrospective cancellation thereof. The respondents were required to establish that the original regularization order dated 16.05.2001 was itself without jurisdiction or otherwise void in law. Merely referring to standards applicable to future appointments could not, by itself, furnish a lawful foundation for nullifying an already completed process of regularization.

He submitted that the respondents were equally bound by the principle that an administrative authority cannot, by a subsequent decision, unsettle an existing service status in an arbitrary manner, particularly where such status had been conferred by the competent authority and acted upon for a considerable period. The petitioner had continued to discharge his duties on the relevant post and had received the corresponding service benefits. The subsequent withdrawal of such benefits, without a legally sustainable foundation and without proper consideration of the petitioner's objections, is therefore liable to be interfered with by this Hon'ble Court.

He submitted that the impugned order, when tested on the touchstone of Articles 14 and 16 of the Constitution of India, cannot be sustained. The action of the respondents is unreasonable, lacks a proper legal foundation, disregards the petitioner's accrued service benefits and proceeds upon an erroneous retrospective application of the Government Order dated 18.04.2001. The impugned action consequently suffers from arbitrariness and discrimination and is liable to be quashed.

He also submitted that, in view of the aforesaid facts and circumstances, the petitioner submits that the respondents had no lawful justification to cancel or otherwise interfere with the petitioner's regularization on the post of Reader (Sitar). The regularization having been granted by the competent Board of Management pursuant to its decision dated 05.05.2001 and formalized by order dated 16.05.2001, the same could not have been annulled through the impugned order dated 18.05.2005 by applying the Government Order dated 18.04.2001 retrospectively.

He lastly submitted that for all the aforesaid reasons, the impugned order dated 18.05.2005 is liable to be set aside as being arbitrary, unreasonable, contrary to the applicable Government Orders and service conditions, violative of Articles 14 and 16 of the Constitution of India and vitiated by non-consideration of the petitioner's reply and non-application of mind. The petitioner is consequently entitled to restoration and protection of the service status and benefits lawfully granted to him, including his regularization on the post of Reader (Sitar), together with all consequential benefits flowing therefrom.

On the other hand, learned counsel for respondent Nos.1 & 2 submitted that the impugned order dated 18.05.2005 is perfectly legal, valid and sustainable in law. The said order has been passed by the competent authority after following the prescribed procedure and after affording due and adequate opportunity of hearing to the petitioner. It is submitted that while passing the impugned order, the competent authority has duly kept in view and complied with the interim order passed by this Hon’ble Court in Writ Petition No. 699 (S/B) of 2005. Therefore, there is neither any procedural irregularity nor any illegality in the passing of the order dated 18.05.2005 warranting interference by this Hon’ble Court in exercise of its writ jurisdiction.

It is further submitted on behalf of respondent Nos. 1 and 2 that the petitioner has failed to establish any legal or factual ground entitling him to the reliefs sought in the present writ petition. The impugned order having been passed by the competent authority in accordance with law and after providing due opportunity to the petitioner, the challenge raised by the petitioner is wholly devoid of merit. Accordingly, the present writ petition deserves to be dismissed and the reliefs claimed by the petitioner ought to be refused in the interest of justice.

Learned Standing Counsel for respondent No.3- State has also adopted the same arguments as of learned counsel for respondent Nos.1 & 2.

I have considered the submissions advanced by learned counsel for the parties and perused the material on record.

Having considered the rival submissions advanced by learned counsel for the parties and having carefully perused the material placed on record, this Court finds that the controversy involved in the present writ petition essentially relates to the legality of the order dated 18.05.2005 whereby the petitioner, who had been regularized on the post of Reader (Sitar) pursuant to the decision of the Board of Management dated 05.05.2001 and the consequential office order dated 16.05.2001, has been directed to be permitted to work only on the post of Lecturer (Sitar), thereby effectively depriving him of the status and service benefits attached to the post of Reader (Sitar). The principal question which, therefore, arises for consideration is whether the respondents were legally justified in retrospectively disturbing the petitioner's already conferred service status by placing reliance upon the Government Order dated 18.04.2001 and the standards prescribed by the University Grants Commission.

The undisputed sequence of events assumes considerable significance. The petitioner was initially appointed on ad hoc basis on 07.01.1989 and was, thereafter, appointed on regular basis against a substantive post on 05.03.1992 pursuant to the recommendation of the Uttar Pradesh Public Service Commission. He was subsequently promoted to the post of Assistant Professor (Sitar) on 21.08.1996 on the recommendation of a duly constituted Departmental Promotion Committee. Thereafter, his salary was fixed in the pay scale of Rs.12,000 –18,300/- vide order dated 18.03.2000. Thus, by the time the subsequent institutional changes took place, the petitioner was not a fresh entrant seeking appointment to an existing or future vacancy, but was an employee who had already been serving the institution for several years and whose service position had undergone successive orders of appointment, promotion, upgradation and grant of corresponding pay benefits.

It is equally material that on 24.10.2000 the Government of India conferred the status of a deemed university upon the Bhatkhande Sangeet Mahavidyalaya and, consequent thereto, the institution was transferred to the newly constituted Society. The State Government's order dated 18.04.2001 specifically dealt with the service conditions of the existing teaching and non-teaching staff. The tenor of the said Government Order, as disclosed from the material before this Court, was to protect the existing employees from being placed in a position less favourable than that which they enjoyed while serving the institution as Government servants. The same protection was reiterated in the Office Memorandum dated 25.04.2001.

The aforesaid protection cannot be treated as an insignificant or merely procedural stipulation. When an existing employee is transferred or absorbed consequent upon a structural change in the character of an institution and the competent Government expressly provides that his existing service status and benefits shall not be adversely affected, such protection necessarily has to be given meaningful effect. The petitioner exercised his option for transfer/absorption in the newly constituted Society on the basis of the terms and conditions so notified. Therefore, the respondents, while thereafter dealing with the petitioner's service status, were required to act consistently with the protection afforded to the existing employees under the Government Order dated 18.04.2001.

The record further demonstrates that the petitioner's service position was not left in a state of uncertainty after the creation of the Society. The Board of Management, in its meeting dated 05.05.2001, specifically considered the question of regularization of the petitioner's services and resolved to regularize him on the post of Reader (Sitar). Pursuant thereto, an office order dated 16.05.2001 was issued giving effect to the said decision with effect from 05.05.2001. Thus, the regularization was the result of a conscious decision of the competent body and was followed by a formal order. There is nothing in the material placed before this Court to demonstrate that the said decision was obtained by fraud, misrepresentation or suppression of material facts on the part of the petitioner.

The respondents have sought to justify the subsequent action principally on the ground that the regularization of the petitioner as Reader was inconsistent with the standards prescribed by the University Grants Commission and the provisions of the Government Order dated 18.04.2001. This submission, however, cannot be accepted in the manner in which it has been invoked against the petitioner. The material placed before this Court indicates that the requirement concerning UGC standards was intended to govern future recruitment and appointment/promotion, whereas the petitioner was an existing employee whose service status had already been dealt with by the competent authorities. The distinction between a future appointment to a post and the regularization of an employee already in service is fundamental and could not have been ignored while passing the impugned order.

In particular, the respondents could not have proceeded on the assumption that every subsequent service benefit enjoyed by the petitioner after the creation of the Society constituted a fresh appointment or promotion requiring the petitioner to satisfy afresh the qualifications and standards applicable to future recruitment. The petitioner had entered service much earlier, had been regularly appointed pursuant to the recommendation of the Public Service Commission, had been promoted as Assistant Professor (Sitar), had been extended the pay scale of Rs.12,000–18,300/- and thereafter had his services regularized on the post of Reader (Sitar) by a specific decision of the Board of Management. The impugned order does not adequately address this entire service history.

The chronology is particularly relevant because the Government Order dated 18.04.2001 itself came after the petitioner had already been extended the benefit of the upgraded pay scale pursuant to the order dated 18.03.2000. Therefore, to the extent the impugned order seeks to use the subsequent Government Order as a basis for undoing the petitioner's pre-existing service benefits, such an interpretation would amount to giving retrospective operation to a provision which, from the material supplied, does not expressly authorize such retrospective divestment.

The position becomes even more significant when the regularization order dated 16.05.2001 is considered. The said order was passed after issuance of the Government Order dated 18.04.2001. Consequently, the respondents cannot simply contend that the petitioner's regularization was contrary to a Government Order which was already in existence, without explaining how and why the competent Board of Management itself considered the petitioner's case and consciously resolved to regularize his services on 05.05.2001. If the respondents considered the said decision to be contrary to the Government Order, it was incumbent upon them to identify the precise provision which rendered the decision void and to establish the competence and lawful authority under which the subsequent decision to withdraw the benefit was taken.

The impugned order, however, does not appear to undertake such an exercise. Instead, it proceeds upon the broad proposition that the petitioner's regularization as Reader was not in conformity with the applicable UGC standards and that he could consequently be permitted to work only on the post held by him on 24.01.2000. Such reasoning does not sufficiently answer the petitioner's specific contention that his service status had subsequently been altered through a conscious decision of the competent Board of Management and pursuant to an order dated 16.05.2001.

This Court is also unable to accept the contention of the respondents that the petitioner was afforded a sufficient opportunity merely because a show-cause notice dated 23.04.2005 was issued to him and his reply dated 07.05.2005 was obtained. Affording an opportunity to submit a reply is only one facet of fair administrative decision-making. Where an authority proposes to take away an existing service benefit having civil consequences, the authority is required to consider the objections raised by the affected employee and apply its mind to the material placed by him. The existence of a notice cannot, by itself, validate an order which fails to deal with the substance of the reply.

In the present case, the petitioner specifically asserted that his regularization had been preceded by his long service, promotion, grant of the upgraded pay scale and, most importantly, a conscious decision of the Board of Management dated 05.05.2001 followed by the formal regularization order dated 16.05.2001. These were material matters directly bearing upon the legality of the proposed action. The impugned order does not demonstrate meaningful consideration of these aspects or furnish cogent reasons as to why the petitioner's detailed objections contained in his reply dated 07.05.2005 were liable to be rejected.

It is settled as a matter of administrative law that where an order has civil consequences, the decision-making authority must disclose due application of mind to the relevant facts and objections. Reasons assume particular importance where an existing benefit conferred by a competent authority is sought to be withdrawn after the employee has acted upon it and continued in service. The impugned order, insofar as it fails to adequately address the petitioner's defence and the successive orders governing his service, suffers from non-application of mind.

The respondents have also not been able to demonstrate from the material supplied that the order dated 16.05.2001 was ever formally cancelled or set aside by a competent authority in accordance with law before the impugned order dated 18.05.2005 was passed. The impugned order, in substance, proceeds to undo the effect of the earlier order by directing that the petitioner be permitted to work only on the post of Lecturer (Sitar). Such an exercise cannot be sustained merely by describing the earlier regularization as contrary to the applicable standards. If the earlier order was alleged to be illegal, the respondents were required to establish the source of their power to reopen and annul the same and to follow a legally sustainable procedure for doing so.

The principle assumes greater force in the facts of the present case because the petitioner had not procured the regularization through any act of misrepresentation attributed to him. The decision dated 05.05.2001 was taken by the Board of Management itself. Therefore, any alleged defect in the decision-making process of the Board could not automatically be converted into a ground for penalizing the petitioner by retrospectively depriving him of his service status, unless the respondents established the legal basis and procedure for such action.

The contention of learned counsel for the petitioner regarding the applicability of the 2002 Bye-laws also merits consideration. A subsequent regulatory framework ordinarily governs matters arising after its commencement unless the instrument itself expressly gives it retrospective operation. Nothing in the material placed before this Court demonstrates that the 2002 Bye-laws contained any provision authorizing retrospective divestment of service benefits which had already been conferred upon existing employees. Consequently, the subsequent regulatory framework could not, in the absence of clear authority, constitute an independent basis for extinguishing an accrued service benefit.

The respondents' contention that the impugned order merely restored the petitioner to the position which he occupied on 24.01.2000 also does not satisfactorily answer the legal issue. Between 24.01.2000 and 18.05.2005, several material events had occurred, including the institutional transfer, the petitioner's exercise of option, the decision of the Board of Management dated 05.05.2001 and the formal regularization order dated 16.05.2001. The petitioner's service status on 18.05.2005 could not, therefore, be determined by mechanically ignoring all subsequent lawful orders and treating his position as frozen on 24.01.2000.

The impugned action is further rendered vulnerable by the manner in which the decision of the Board of Management dated 18.05.2005 is stated to have been taken. The petitioner has specifically questioned the competence and constitution of the body which purportedly took the decision, asserting that out of eight members constituting the Board, only two members are stated to have taken the decision. Although the respondents have generally asserted that the impugned order was passed by the competent authority, no material has been brought on record in the submissions placed before this Court which satisfactorily demonstrates that the decision was taken by a duly constituted and competent body in accordance with the applicable rules. Where an existing service right is sought to be withdrawn, competence of the decision-making authority is not a mere technicality but goes to the root of the validity of the action.

The reliance placed by learned counsel for the respondents upon the interim order passed in Writ Petition No.699 (S/B) of 2005 also does not advance their case. The interim order dated 13.05.2005 merely restrained the respondents from filling up the post of Reader (Sitar) pursuant to the advertisement dated 04.07.2004 and permitted the respondents to consider and decide the petitioner's objections to the show-cause notice. The said interim order cannot be construed as an adjudication authorizing the respondents to retrospectively cancel the petitioner's regularization or to finally determine his service status contrary to law. Compliance with an interim order does not validate an otherwise legally unsustainable substantive decision.

It is also significant that the impugned order itself appears to have been passed in the backdrop of the advertisement dated 04.07.2004 for the post of Reader (Sitar). The existence of a subsequently advertised vacancy, however, could not by itself constitute a lawful ground for displacing a person who had already been regularized on that post by an earlier decision of the competent authority. The legality of the petitioner's regularization had to be determined independently on the basis of the governing orders, the decision of the competent authority and the applicable service conditions.

The respondents have primarily relied upon the assertion that the petitioner was given adequate opportunity and that the competent authority acted in accordance with the interim order of this Court. These submissions, however, do not meet the substantive challenge raised by the petitioner. The question is not merely whether a notice was issued or whether the authority acted after obtaining the petitioner's reply; the real question is whether the authority had lawful jurisdiction to withdraw the existing service benefit, whether it correctly interpreted the Government Order dated 18.04.2001, whether it considered the petitioner's specific defence and whether the decision was taken by a competent authority in accordance with the governing framework.

On an overall consideration of the matter, this Court finds that the impugned order proceeds on an erroneous premise that the standards relating to future appointments or promotions could be invoked retrospectively to nullify the petitioner's existing and subsequently regularized service status. Such an interpretation would also run contrary to the protection contained in the Government Order dated 18.04.2001 and the Office Memorandum dated 25.04.2001, which contemplated that the existing staff should not be placed in a less favourable position on account of the transfer of the institution to the newly constituted Society.

The respondents have also failed to establish any compelling legal basis for treating the petitioner's regularization dated 16.05.2001 as a nullity. It is not shown that the order was passed by an authority having no jurisdiction whatsoever, nor is any fraud or misrepresentation on the part of the petitioner demonstrated. In such circumstances, the respondents could not, after a considerable lapse of time, simply unsettle the petitioner's service status by passing the impugned order without first lawfully setting aside the earlier order and without adequately considering the petitioner's objections.

The argument of learned counsel for the petitioner regarding accrued service benefits, therefore, has substance. The petitioner's service status had evolved through a series of orders passed by the competent authorities and the respondents were bound to take those orders into account. An employee who has been continuously permitted to serve and has been extended the corresponding service benefits pursuant to orders of the competent authority cannot be deprived thereof arbitrarily and without a clear legal foundation.

The plea of the petitioner based upon Articles 14 and 16 of the Constitution also deserves acceptance to the limited extent that the impugned action, having failed to demonstrate a rational and legally sustainable basis for retrospectively disturbing his service status, cannot be sustained as a fair and reasonable exercise of administrative power. Article 14 requires administrative action having civil consequences to conform to standards of non-arbitrariness and reasonableness. In the facts of the present case, those requirements have not been satisfactorily met.

The submission regarding similarly situated employees, including the case of Smt. Bina Singh, by itself may not conclusively determine the petitioner's rights, since each service dispute must ultimately be decided upon its own facts and governing provisions. Nevertheless, the circumstance relied upon by the petitioner reinforces the requirement that the respondents ought to have applied the governing service framework consistently and objectively rather than selectively disturbing an existing service benefit without demonstrating a lawful distinction.

This Court is conscious that judicial review does not ordinarily extend to substituting the Court's own view for that of the administrative authority on matters falling within its legitimate domain. However, where an administrative decision is founded upon an erroneous interpretation of the governing instrument, fails to consider relevant material and objections and results in withdrawal of an existing service benefit without demonstrating lawful authority for such retrospective action, interference under Article 226 of the Constitution is warranted. The present case falls within that limited sphere of judicial review.

Learned counsel for respondent Nos.1 and 2 has not been able, on the material placed before this Court, to demonstrate that the Government Order dated 18.04.2001 expressly authorized retrospective cancellation of the petitioner's regularization dated 16.05.2001. Nor has it been demonstrated that the petitioner's regularization was void ab initio or that the competent authority had, before passing the impugned order, lawfully annulled the decision dated 05.05.2001 and the consequential order dated 16.05.2001. The general assertion that the impugned order is legal and that opportunity was granted is, therefore, insufficient to sustain the action.

The adoption of the same submissions by learned Standing Counsel appearing for respondent No.3-State also does not alter the position. The State's support to the impugned action cannot cure the substantive defects in the decision-making process or supply a legal authority which is otherwise absent from the impugned order.

In view of the foregoing discussion, this Court is of the considered opinion that the impugned order dated 18.05.2005 cannot be sustained. The said order has the effect of taking away from the petitioner the status of Reader (Sitar) which had been conferred upon him by the competent authority through the decision dated 05.05.2001 and the consequential office order dated 16.05.2001. The respondents have failed to establish a lawful basis for such retrospective withdrawal. The impugned order further suffers from non-consideration of the petitioner's reply dated 07.05.2005 and from failure to deal with the material circumstances governing his service status.

Consequently, the impugned order dated 18.05.2005 passed by respondent No.2 is hereby quashed. The respondents are directed to give effect to the decision of the Board of Management dated 05.05.2001 and the consequential office order dated 16.05.2001 whereby the petitioner's services were regularized on the post of Reader (Sitar), subject to the petitioner's entitlement under the applicable service rules and orders.

The respondents shall accordingly restore the petitioner to the service status which flowed from the aforesaid regularization order and shall extend to him the consequential service benefits attached thereto, including the benefits of pay and other emoluments admissible in accordance with law. The consequential benefits shall be worked out by the competent authority within a reasonable period from the date of production of a certified copy of this order.

It is clarified that the relief granted herein flows from the petitioner's existing service status and the validity of the regularization order dated 16.05.2001 and shall not be construed as conferring upon the petitioner any benefit dehors the applicable service rules for any subsequent appointment or promotion. The respondents shall, however, remain bound by the protection available to the petitioner as an existing employee under the governing Government Orders and the lawful orders passed by the competent authority.

For the reasons recorded hereinabove, the writ petition succeeds and is accordingly allowed. The impugned order dated 18.05.2005 is quashed. The respondents are directed to restore and protect the petitioner's service status as Reader (Sitar), as flowing from the regularization order dated 16.05.2001, with all consequential benefits admissible in law.

In the facts and circumstances of the case, there shall be no order as to costs.