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Judgment
Narayan Shukla, J.—Heard Dr. L.P.Mishra, learned Counsel for the Petitioner and Mr. Vinai Krishna, learned Counsel for the opposite parties 2 and 3.
The dispute relates to the qualification prescribed for the post of Librarian by way of amendment made in the Rules called as the Bhatkhande Music Institute Non-teaching and Technical Cadre Service Regulations, 2002 (in short Regulations, 2002). The facts of the case in brief are stated hereunder:
That on 28th of October, 1988, the Petitioner was appointed as Book Keeper in the Bhatkhande Music Institute, Lucknow (in short Institute), now Bhatkhande Music Institute Deemed University, Lucknow. He was conformed on the said post by means of order dated 16th of September, 1993 w.e.f. 1st of July, 1992. On account of vacancy created on retiring of Librarian Shri Tej Narayan Singh on 30th of September, 1999, the Petitioner was allowed to work as Librarian by the Principal of the Institution, pursuant to which he started discharging the duties and functions of Librarian w.e.f. 1st of October, 1999.
On 1st of February, 2004, the post of Librarian was advertised to fill up through the direct recruitment prescribing the qualification Graduation in Library Science. The Petitioner applied and was interviewed also, but for some reason the said selection could not be finalized. The Petitioner worked as Librarian till 9th of March, 2007 as on that date the Administrative Officer of the Institution asked one Mr. Ram Chandra, Fee Clerk to work as Librarian in addition to his routine work. Thus, the Petitioner discharged duties of Librarian w.e.f. 1st of October, 1999 till 9th of March, 2007.
Prior to enforcement of Regulations, the service conditions of the post of Librarian was governed under the terms of Government Order dated 27th of October, 1983, which prescribed the qualification for the post of Librarian as Graduation in Library Science with experience of two years in any Library or Archive. Regulations 2002 prescribed qualification as post Graduate in Library Science, but in 2004 again the same was amended by the Board of Management by providing the qualification as Graduate in Library Science, which continued till next amendment was made on 31st of May, 2011, which again prescribed the qualification for the post of Librarian as Post Graduate in Library Science. The Petitioner has challenged the same as well as the advertisement dated 11th of June, 2011, whereby the post of Librarian has been advertised by requiring the qualification as post Graduate in Library Science.
The Petitioner has also challenged the Regulation 5(2) of the Service Regulations, 2002, which provides the source of recruitment on the post of Librarian by way of "direct recruitment". The Petitioner also claims the difference of salary between the post of Book Keeper and Librarian, since under the order of the authority, he discharged the duties of Librarian w.e.f. 1st of October, 1999 to 9th of March, 2007. He claims his entitlement for the salary of the post of Librarian during this period.
The ground for challenging the Regulation 5(2), which prescribes the appointment by way of direct recruitment, has been taken that the Petitioner must get at least one or two promotional avenues. It is further stated that the post of Librarian is the next higher post of the post of Book Keeper and if the post of Librarian is permitted to be filled in by way of direct recruitment, he shall never get any chance of promotion.
It is stated by the Petitioner that the amendment in the Regulations made by the Vice Chancellor of the University, prescribing the qualification as Post Graduate, is a complete misreading of the provisions of Rule 15(b)(ii) of the Memorandum of Association, which empowers the Vice Chancellor to exercise any power conferred upon any authority of the Institution under the Memorandum of Association and the Rules and Regulations/Bye Laws and to take such action or proceed to take such action and report to the concerned authority, action taken by him on such matter, if he is of the opinion that immediate action is called for on any matter. It is stated that the Vice Chancellor cannot exercise such power to nullify the Regulations framed by the Board of Management of the Institute. It is further stated that the Rules empowers the Vice Chancellor to act under the Memorandum of Association, Rules, Regulations and Bye-laws only and not to amend those. It is fortified by Clause (iv) of Rule 15, which provides that it shall be the duty of the Vice Chancellor to ensure that the Memorandum of Association, the Rules, Bye-laws and Regulations of the Institute are duly observed and implemented and he shall have all the necessary powers in this regard.
The learned Counsel for the Petitioner drew attention of this Court towards the impugned order dated 31st of May, 2011 issued by the Vice Chancellor, which envisages the statement of aims and objects of amendment impugned. It speaks that the said amendment is based on the enquiry report, whereby the workings of the employees of Library have not been found proper and satisfactory as also to remove the anomalies in the eligibility criteria prescribed for the post and to maintain it as per prescribed standard of University Grant Commission. He states that so far as the inquiry report regarding the Petitioner''s working is concerned, if anything is found adverse against him, he can be subjected for disciplinary proceedings, but that may not be the ground to debar him from the achievement of the next higher post. So far as the question of maintaining the standard prescribed by the UGC is concerned, it is stated that No. doubt the UGC prescribes the qualification for the post of Librarian as ''post graduate'', but in that event its status is equal to the post of Professor. As per 6th Pay Commission report the pay scale of Processor is 37400-67000 with academic grade pay of Rs. 10,000/-. It also prescribes the same very scale of pay for the Librarian as is applicable for the post of Professor, whereas in the Institute the post of Librarian is equivalent to the post of Clerk as herein its scale of pay is Rs. 6500-10500 and for the post equivalent to the category of clerk, nowhere, even under the UGC, the qualification of post Graduation is prescribed. Thus, it is stated that these two grounds do not support the amendment made by the Vice Chancellor. It is further stated that so far as the power of amendment exercised by the Vice Chancellor for immediate action is concerned, the order impugned does not reveal any emergency as the qualification of Graduation in Library Science had been continuing since 15th of March, 2004 and the Petitioner being Graduate was permitted to work till 2007.
In reply the Respondents have disputed the Petitioner''s functioning as Librarian, rather it is stated that merely he assisted the administrative officer, who was officiating the post of Librarian, which does not ipso facto convert a Book Keeper into a Librarian. It is further stated that at No. point of time the Principal of the Institute directed him to function as a Librarian, as is evident from the order dated 24th of September, 1999 issued by the Principal. It is further stated that there is neither any restriction nor any bar under the provision of law or precedence, whereby the Vice Chancellor in exercise of emergency powers under Rule 15(b) (ii) of the Memorandum of Association, cannot amend the Service Regulations, 2002. In support of his submission he cited a case decided by Punjab and Haryana High Court, rendered in the case of Poonam Vij and Others Vs. The Thapar Institute of Engineering and Technology (Deemed University), Patiala and Another,
The learned Counsel for the Respondents further stated that the minimum educational qualification for the post of Librarian as per the guidelines of the UGC is Masters Degree in Library Science/Information Science/documentation with at least 55% of the marks or its equivalent grade of B in the UGC seven point scale and consistently good academic record. The service Regulation 2002, as it originally stood, prescribed the minimum educational qualification as a Master''s Degree in Library Science with 55% marks from a recognized University. The aforesaid Regulations have been amended by the Board of Management in 2004, whereby the qualification was reduced to the Graduate degree in Library Science with 55% marks. Thereafter the Vice Chancellor received information from one of the members of the Committee constituted for the physical verification of material in the Library of the University to the effect that a large number of books are missing from the Library due to lackadaisical attitude of the Library staff, therefore, on account of the said reasons he enhanced the educational qualification for the post of Library from Graduate to the Post Graduate Degree in Library Science in exercise of powers provided under Rule 15(b)(ii) of the Memorandum of Association of the University and made the consequent amendment in 2011 in the Service Regulations, 2002. The said decision is to be placed in a next meeting of the Board of Management for ratification, which is scheduled to be held in September, 2011.
It is further stated that the aforesaid judgment of the Punjab and Haryana High Court permits the Vice Chancellor to exercise the emergency power to amend the Regulations. Further the Vice Chancellor has merely replaced the original Service Regulations, 2002 as it stood prior to it''s amendment in 2004. The same has been acted upon by the Vice Chancellor in a bonafide and good measure aimed at catapulting the University towards it''s goal for excellence and merit. The learned Counsel for the Respondents further stated that the guidelines of the UGC did not have a binding effect on the University, as has been held by the Division Bench of the Andhra Pradesh High Court in the case of Osmania University v. R.Madhavi and Ors. reported in AIR 1998 AD 130. The said guidelines are in the form of an aspiration of the UGC as to the parameters of appointment, hence the said guidelines find mention and consideration in the said amendment of 2011. The parameters of the said guidelines were considered as to the requirement of the University on the subjective satisfaction of the Vice Chancellor. It is stated that the Vice Chancellor has made the said amendment in the Service Regulations, 2002 with a view to steer the University to new heights. The same being, of course, subject to ratification by the Board of Management.
By means of order dated 18th of September, 1999 the Administrative Officer of the Institute was authorized to look after the Library through the senior employee working in the Library with the negative clause that he shall not be entitled for any additional payment/facility therefor. The Petitioner admits his working as Librarian under the strength of said order till 2007, therefore, I am of the view that for the work of Librarian discharged by him he is not entitled for any payment in addition to his post, which is a post of Book Keeper. Therefore, the prayer No. (c) is rejected.
The source of recruitment on the post of Librarian is a direct recruitment as is provided under Rule 5(2) of the Rules, 2002 and admittedly when the post was advertised in the year 2004, the Petitioner also applied, but the said selection could not be finalized. Now at this stage he cannot be permitted to turn up to take a plea that the post should be filled up by way of promotion. Therefore, on the basis of the plea raised by the Petitioner that he has No. promotional avenues, keeping in view the stagnation in promotion, the Rule 5(2) of Chapter 3 of the Rules 2002, be declared as unconstitutional, I am of the view that this is No. ground to struck down any Rule as it is settled law that the Rule can be struck down by the court only on two grounds viz. (i), lack of legislative competence, and (ii) violation of any fundamental rights guaranteed in part three of the Constitution or of any other constitutional provision as has been held by the Hon''ble Supreme Court in the case of State of Andhra Pradesh and others, etc. Vs. McDowell and Co. and others, etc., Therefore, the relief No. (aa) is rejected.
Since there is No. promotional avenues to the Petitioner who is holding the post of Book Keeper, keeping in view the decision of Hon''ble Supreme Court rendered in the case of Food Corporation of India and Others Vs. Parashotam Das Bansal and Others, I hereby issue direction to the Respondents to create minimum one promotional avenue in the Petitioner''s service. Relevant paragraph 13 of the aforesaid judgment is reproduced hereunder:
If there is No. channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a superior court of the country.
Upon perusal of the order dated 31st of May, 2011, whereby the Vice Chancellor has made the amendment impugned, it is evident that for making an amendment he has exercised the power of Rule 15 (b) (ii), which is reproduced here-under:
(ii) The Vice-Chancellor may, if he is of the opinion that immediate action is called for on any matter exercise any power conferred upon any authority of the Institute under the Memorandum of Association and the Rules and Regulations / Bye-laws, take such action or proceed to take such action and shall report to the concerned authority on the action taken by him on such matters.
As is evident the aforesaid Rule empowers the Vice Chancellor to exercise any power conferred upon any authority of the Institute.
Rule 4 of the Bhatkhande Music Institute, Lucknow Rules describes the authorities of the Institute. The following shall be the authorities of the Institute:
Authorities of the Institute
The following shall be the authorities of the Institute:
President
Board of Management
Academic Council
Planning and Monitoring Board
Finance Committee
Advisory Committee
Such other authorities as may be declared by the bye-laws to be authorities of the Institute.
It is the Board of Management, who is empowered to frame the Rules and it also framed the Rules, 2002, therefore, it is only the authority to amend to same. Since under Rule 4, the Vice Chancellor has been empowered to exercise the power of authority, he amended the Rules impugned, but it appears that under Rule 15(b)(ii) of the Memorandum of Association, he is empowered to exercise any power conferred upon any authority of the Institute under the Memorandum of Association and the Rules and Regulations /Bye-laws.
By citing a decision of the Punjab and Haryana High Court rendered in the case of Poonam Vij and Others Vs. The Thapar Institute of Engineering and Technology (Deemed University), Patiala and Another, the learned Counsel for the Respondents contended that if the Vice Chancellor is of the opinion that immediate action is necessary, on any matter, he may exercise any power conferred on the Board and when the matter is put up before the next meeting of the Board for ratification, if the Board is of the opinion that such action ought not to have been taken, it may disapprove it.
Upon bare perusal of the Rule 15(b)(ii) I am of the view that he may be correct to his contention, but keeping in view the next provision of the Rule i.e. sub Rule (iv) of Rule 15(b), I am of the view that the Vice Chancellor is duty bound to ensure the Memorandum of Association, the Rules, Bye-laws and Regulations of the Institute are duly observed and not to amend or over rule it. Clause (iv) is reproduced hereunder:
(iv) It shall be the duty of the Vice-Chancellor to ensure that the Memorandum of Association, the Rules, Bye-laws and Regulations of the Institute are duly observed and implemented and he shall have all the necessary powers in this regard.
It is also significant to mention here that for amendment of the qualification for the post of Librarian, there was No. emergent situation to amend the Rule prescribing the Post Graduate qualification for the post of Librarian, which was operative since 2004, that too on the basis of aims and objects for amendment. It is settled law that the pay scales as well as minimum educational qualification should always be adhered to the status of the post and once the status of the post i.e. Librarian is of a clerk in the Institute, there was No. occasion or any emergent situation to upgrade the qualification for the said post. So far as the another ground of amendment i.e. misplacement of valuable books is concerned, the person who is working in the Library can be held responsible after enquiry, but I am of the view that that does not create any emergent situation to amend the Rules. By amending the Rules the Vice Chancellor has colourably exercised the power, whereas the same is not vested with him, which appears that just to defeat the claim of the Petitioner for appointment on the post of Librarian he made an amendment as he is well aware that the 13 Petitioner possesses only Graduate qualification.
It is also the claim of the Petitioner that since the vacancy of Librarian occurred in 1999, due to retirement of one Shri Tej Narayan Singh, for the purpose of recruitment on the said post, it should be governed under the law prevailing on the date of vacancy. On the date of occurrence of vacancy the Government Order dated 27th of October, 1983 was prevailing, which prescribed the qualification as Graduation in Library Science with experience of two years. Thereafter in 2002 the Regulations were framed to govern the service conditions of non-teaching and Technical Cadre staff. It is admitted by the Respondents that they are not governed under any mandate of the UGC, but they take it as guidelines and they have also taken care of UGC guidelines to upgrade the qualification of the post of Librarian, whereas there is great difference in the status of the post of Librarian governed by the UGC as well as by the Institute.
In support of his submission the learned Counsel for the Petitioner cited a decision of the Hon''ble Supreme Court rendered in the case of State of Andhra Pradesh and Ors. v. J. Sreenivasa Rao and Ors. reported in 1983 (3) SCC 285. The relevant paragraph 9 is reproduced here-under:
Having heard the counsel for the parties, we find No. force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the Petitioners in the two representation petitions who ranked higher than Respondents 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was No. question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.
It is also significant to point out that once the power exercised by the Vice Chancellor to amend the Rules is without jurisdiction, the same cannot be clothed with jurisdiction by subsequent ratification of the Board as the same is void abinitio as has been held by the Hon''ble Kerala High Court in the case of M.Bavakutty v. The University of Calicut and Ors. reported in Keralawyer Judgment 07 KLC 2250.
Under the circumstances, I hereby quash the order impugned dated 31st of May, 2011 (Annexure No. CA-4) as also the advertisement dated 11th of June, 2011 (annexure No. 1) to the extent it prescribes the qualification as Post Graduate in Library Science for the post of Librarian and a direction is issued to the Respondents to fill up the post of Librarian under the Rules applicable on the date of occurrence of vacancy, due to retirement of one Mr. Tej Narayan Singh, Librarian, on 30th of September, 1999.
In the aforesaid terms the writ petition is partly allowed