Amrit Chandra Barkotoky vs Assam Agricultural University and Others

J.N. Sarma, J.—This application under Article 226 of the Constitution of India has been filed for the following reliefs:

(i) To declare Clause 2 of the statute framed under the Assam Agricultural University Act, 1968 as illegal, unconstitutional and void.

(ii) To quash the impugned order dated 2.1.93 (Annexure-I) passed by the Registrar, Assam Agricultural University.

The brief facts are as follows:

That the Petitioner was serving as a Divisional Accountant in the Assam State Electricity Board from November, 1960 to 1969. In the year 1969, the Petitioner joined the Assam Agricultural University (hereinafter called the AAU, Jorhat) as Asstt, Accounts Officer and since then he has been serving in the University in various capacities as a regular employee. On 12.5.72, the Petitioner was promoted to the post of Asstt. Accounts Officer. The Petitioner was also allowed to hold the charge of the post of Deputy Comptroller and he has been serving as a Deputy Comptroller since then and has been confirmed in the post. The Assam Agricultural University Act, 1968 is the Act to manage the affairs of the University. Section 10 of the Act provides for the constitution of the board of management. The powers and duties of the board are laid down by Section 11 (1) Section 41 of the Act provides us follows:

Subject to the provisions of this Act, the Statutes may provide for all or any of the following matters, namely:

Sub-Section 9 provides for the manner of appointment and selection of officers other than the Vice-Chancellor and their powers and terms and conditions of service.

Section 42 provides how statutes are to be made in the exercise of this power the first statute under the Assam Agricultural University Act, 1968 (hereinafter called Act) was made. This statute was published in the Assam Gazette on 26.6.70 and it was made by the Vice-Chancellor with the approval of the Chancellor. Chapter III provides for the designation, manner of appointment, powers, functions and duties of the Officers of the University. Clause 2 of the statute provides as follows:

The procedure prescribed for the appointment of Deans of College and the Director of Research Extension Education Post-Graduate Studies etc. shall also be followed (Except in the case of the Comptroller) in making these appointments except that the Selection Committee will consist of the following:

(i) Vice-Chancellor-Chairman.

(ii) An expert nominated by the Vice-Chancellor.

(iii) A member nominated by the Board.

The Comptroller shall be either from the Finance Department of the State Government or from the A.G.''s Office and will be appointed on deputation term. (The Registrar shall be a person with considerable administrative experience from the State Government and will be appointed on deputation terms).

It is pertinent to note that the Comptroller is the Officer of the University within the meaning of Section 17 of the Act. Section 23 (1) says as follows:

The Comptroller shall be whole-time officer of the University and shall be appointed by the Vice-Chancellor subject to the approval of the Board.

Section 2 and 4 of the Section 23 specified the functions of the Comptroller. It is contended that this clause 2 is beyond the Rule making power and it is unconstitutional. In this writ application it is prayed that this clause may be struck down and Shri A.C. Borbors learned Counsel for the Petitioner urges the following points:

(i) Provision of Clause 2 is not clear as to:

(a) What grade of officers from the Finance Deptt. or A.G.''s Office are to be brought in:

(b) No specific period of deputation mentioned and it provides for deputation for indefinite and uncertain period, unguided and un restricted power is vested by the impugned provision.

(ii) Impugned clause is discriminatory and based on unreasonable classification without any nexus with the objects of the A.A.U. Act.:

(a) It outrightly excludes equal or even more qualified/experienced person;

(b) It sticks out promotional avenues of the existing officers;

(c) It deprives equality and equal opportunities in the matter of public employment. Hence, violates Articles 14 and 16 of the Constitution.

(iii) Favourable treatment meted out to officers serving in the A.G.''s Office/Finance Deptt. to the prejudice of long service officers of the A.A.U.

(iv) It imparts stagnancy in service career. It results in chain stagnancy for officers of the A.A.U. serving in various posts.

(v) It curtails incentives, reduces efficiency and hampers moral, This is also not the object sought to be achieved by the Act.

(vi) It allows to "pick and choose" any-one from the Finance Deptt. and the A.G.''s Office and as such arbitrary.

(vii) The University being a statutory body it offers Public and not Private employment.

The provision is unreasonable, unfair and unjust.

(viii) There is no rational or tangible basis. No intelligible differentia for the purported exclusion. Impugned clause is beyond the purview of the Act.

(ix) The impugned clause is ultravirus the Act - Particularly Section 23(1) and Sec 41 of the A.A.U. Act.

(x) Neither Section 21 nor Sec 41 empowers the V.C. to make such provision.

(xi) There is no exigencies whatsover for such provision.

On the other hand, Shri P. Prasad appearing for the University urges as follows:

(i) The object of the provision requiring appointment of an Officer on deputation from the Finance Deptt., Govt, of Assam or Accountant General''s office is that the University is heavily financed by the State Govt, and other and as such, a close liasion between the University and the State and (he Central Govt, in the matter of finance of the University are required to be kept. Hence, the post of Comptroller is filled up by deputation.

(ii) The Selection of the Comptroller docs not depend merely on qualification but also on considerations which are dependent on the Finances made available by the State Govt, and Central Govt.

(iii) The post of Comptroller is not a promotional post but a Selection Post and the Petitioner cannot as of right claim to be promoted to the post of Comptroller.

(iv) The post of Comptroller has been earmarked for the candidate to be deputed front the Finance Deptt. as provided in the statute.

(v) The reason for getting reserved the post for particular category is writ large in the statute.

In the earlier Civil Rule No. 1186/83, The Division Bench of this Court by order dated 13.12.89 observed as follows:

We therefore, think that the present case is a fit case, where the Vice-Chancellor should apply his mind afresh relating to the source from which the post of Comptroller should be filled in. In any case as the Petitioner has served the University well as seniormost Deputy Comptroller from 1975 and he is due to retire within two years from now, we are of the view that a case has been made out by him requiring relation of the aforementioned condition imposed by the First Statutes to fill in the post of Comptroller.

It was also observed as follows:

Having heard Shri Borbora at some length, we are of the tentative view that the contentions advanced by the learned Counsel have sufficient force.

Accordingly, the Writ Petitioner of that Civil Rule was allowed to hold the post of the Comptroller and the Civil Rule was disposed of by order dated 18.7,90. That person has left the post of the Comptroller and the present controversy has again arisen.

It is settled law that the legislature cannot delegate uncanalised and uncontrolled power. The power delegated must not be "unconfined and vagrant" and must be canalised within banks mat keep it from flowing. That set the limits of the power delegated are to be considered by the legislature by declaring the policy of the law and by laying down all the standards for guidance of them, on whom the power to execute the law is conferred See 1960 SC 554 Hamdard Dawakhana v. Union of India; (ii) 1974 SC 1232 NarayanDas v. State of Madhya Pradesh; (iii) 1972 SC 1917 Tata Iron and Steel v. Workmen and (iv) 1978 SC 1457 P.N. Kaushal v. Union of India. The delegated legislation is open to scrutiny of all the courts and may be declared invalid mainly on two grounds - (i) violation of the constitution and (ii) violation of the enabling Act. In considering the vires of the subordinate legislation one should start with the presumption that it is intravires. The principles means that if a subordinate legislation under consideration is open to two constructions one of which would make it bad and the other good, the courts must adopt that construction which makes it good. It is also settled law mat the Rules are open to challenge on the ground that they are unreasonable. In the famous English case of Kraalse v. Johnson, 1895-99 All ER Report Page 105 Lord Russel pointed as follows:

Unreasonableness in what sense 2 if for instance they were found to be partial and unequal in their operation between different classes, if they were manifestly unjust, if they disclosed bad faith, if they involve such oppressive or gratuitous interference with rights of those subjects to them as could find no justification in the minds of reasonable men, the court might well say Parliament never intended to give authority to make such rules and that they are unreasonable and ultravires. But it is in this sense in this sense only, as I conceive, that the question of unreasonableness can be properly regarded.

In 1968 SC 1232 (Delhi Municipality v. Birla Cotton and Spinning and Weaving Mill), the Supreme Court also pointed out that the bye-laws made by a Municipal Corporation can be challenged on the ground of unreasonableness.

In connection with rule making power, we may also have a look at D.S. Garewal v. State of Punjab 1959 SC 512 where Section 3 of the Indian Services Act, 1951 which gives powers to the Central Govt, to frame rules "for the regulation of recruitment and the condition of service" was upheld, The court found the policy and guidance of the Act in the then existing rules which were continued by the Act although powers were given to vary or amend them by new rules framed under the Act. It was pointed out that the procedure prescribed in the Act for making of rules that they were to be laid down on the table of Parliament before they could come into force and open to modify on omission made by the Parliament, was sufficient control over the delegate and the Act did not suffer from excessive delegation. Similarly, in Caltex India Limited Vs. Presiding Officer, Labour Court and Others, such Presiding Officer which deal with Section 26 of the Bihar Shops and Establishments Act, 1954 and the policy and guidance were come from the background of the Industrial Law. The Section and Acts provide that no employer shall dismiss an employee except on reasonable cause and after giving the employee the one month''s notice or wages in lieu of notice. The Section consists a proviso that no notice will be necessary when services are dispensed with "on charge of misconduct as may be prescribed by the State Govt." It was contended that the proviso left uncontrolled discretion to the State Govt, to prescribe the charges and therefore, the delegation was excessive. It was held that the legislature must have known that misconduct in Industrial law is of two kinds, one major misconduct justifying punishment of discharge or dismissal and other is minor misconduct justifying lesser punishment and that power conferred by the proviso is limited to the prescription of such misconduct which is major in nature. It is further settled law that the subordinate legislation should be declared normally to be valid can be declared invalid on the following grounds:

(i) Bad faith that is to say that powers entrusted for one purpose are deliberately used with the design of achieving another, itself authorised or actually forbidden.

(ii) That it shows on its face a misdirection of the enabling Act or a failure to comply with the conditions which that Act has prescribed for the exercise of the powers.

(iii) That it is not capable of being related to any of the purposes mentioned in the Act.

That a statutory rule framed by the University can be challenged as invalid has been settled in Bisheshwar Dayal Sinha Vs. University of Bihar and Others, Biseswar Dayal Sinha v. University of Bihar where the statute made under Bihar State Universities (Patna, University of Bihar, Bhagalpur and Ranchi) was challenged being inconsistent with the provisions of the Act. There the Supreme Court pointed out that the statutes were framed hastily and were plainly inconsistent with the provisions of the Act.

Shri Borbora appearing for the Petitioner has relied on the following decisions:

(i) 1991 SC 101 Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors. There before the Supreme Court the validity of Regulation 9(a) and (b) was challenged. This Regulation 9(a) and (b) of the Delhi Transport Authority (Conditions of Appointment and Service) Regulations (1952) were framed in the exercise of the powers conferred u/s 53 of the Delhi Road Transport Act, 1950 read with Delhi Road Transport (Amendment) Act, 1971.The Regulations 9(a) and (b) are quoted below:

(a) Except as otherwise specified in the appointment orders, the services of an employee of the authority may be terminated without any notice or pay in lieu of notice:

(i) During the period of probation and without assigning any reason thereof.

(ii) For misconduct.

(iii) On the completion of specific period of appointment.

(iv) In the case of employees engaged on contract for a specific period, on the expiration of such period in accordance with the terms of appointment.

(b) Whether the termination is made due to reduction of establishment or in circumstances other than those mentioned at (a) above, one month notice or pay in lieu thereof will be given to all categories of employees.

The majority view was taken by 4 judges and the minority view is that of Sabayasachi Mukharji, C.J. The Supreme Court laid down as follows: "Thus on a conspectus of the catena of cases decided by this Court the only conclusion follows is that Regulation 9(b) which confers powers on the authority to terminate the services of a permanent and confirmed employee by issuing a notice terminating the services or by making payment in lieu of notice without assigning any reasons in the order, and without giving any opportunity of hearing to the employee before passing the impugned order is wholly arbitrary, (sic) and unrestricted violating principles of natural justice as well as Article 14 of the Constitution

....

In other words the Services Regulations Or Rules framed by them are to be tested by the touchstone of Article 14 of Constitution. Furthermore, the procedure prescribed by their Rules or Regulations must be reasonable, fair and just and not arbitrary, fanciful and unjust. Regulation 9(b), therefore, confers unbridled, uncanalised and arbitrary power on the authority to terminate the services of a permanent employee without recording any reasons and without conforming to the principles of natural justice. There is no guideline in the Regulations or in the Act, as to when or in which cases and circumstances this power of termination by giving notice or pay in lieu of notice can be exercised....

Considering from all aspects Regulation 9(b) is illegal and void as it is arbitrary, discriminatory and without any guidelines for exercise of the power. Rule of law posits that the power to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination.

In the judgment of Hon''ble Sharma J. it was further pointed out that:

The law should lay down detailed guidelines in unambiguous and precise terms so as to avoid the danger of misinterpretation of the situation. An element of uncertainty is likely to lead to grave and undesirable consequences. Clarity and precision are, therefore, essential for the guidelines." It was further pointed out that the Supreme Court consistently has struck down the rules in its naked form without any guidelines whatsoever, broad or otherwise. It was further pointed out that vesting the arbitrary power would be a breeding ground for nepotism and insolance instead of subserving the constitutional purpose.

(ii) 1983 SC 130 D.S. Nakara v. Union of India this case does not help the Petitioner in the facts and circumstances of this case. The principles laid down in that case do not apply/to test the validity of any rule.

(iii) 1983 SC 803 State of Maharashtra v. Chandravan. The challenge in that case was regarding the second proviso to Rule 151(i) & (ii)(b) of the Bombay Civil Services Rules 1951, That rule provided for payment of subsistance allowances @ Rs. 1 per month to a Govt, servant who was convicted by a competent court and sentenced to imprisonment whose appeal against the conviction and sentence is pending. The Supreme Court held that this rule is void as it offended Article 14, 16, 21 and 311(2) of the Constitution. The Supreme Court pointed out as follows:

(a) Public employment being property of the nation which has to be shared equally subject of course to the qualification necessary for holding the office or post. However, it should not be monopolised by any particular Section of the people of this country in the name of efficiency though efficiency cannot altogether be ignored.

(b) If any provision in any rule framed under the Article 309 of the Constitution is illusory unreasonable, it is certainly open to the Civil Servant concerned to seek the aid of the court for declaring that provision to be void.

Considering the entire matter, the Supreme Court allowed the Writ Application and struck down the Rule.

(iv) 1989 SC 1972 Council of Scientific and Industrial Research and v. K.G.S. Bhatt. Here the Supreme Court was considering the bye-laws framed by the Council of Scientific and Industrial Research, the Supreme Court pointed out that in a service career promotional avenue should be made available and if any Rule unreasonably shut the promotional avenue such Rule has to be struck down on the ground that it causes unjustice to the employees.

(v) B. Prabhakar Rao and Others Vs. State of Andhra Pradesh and Others, B. Prabhakar Rao and Ors. v. State of Andhra Pradesh where the Supreme Court pointed out as follows:

(a) It may be possible that in a given set of circumstances, portentous administrative complexity may itself justify a classification. But, there must be sufficient evidence of that - how the circumstances will lead to chaos,

(a) No decision should be taken in swift manner which will result in arbitrariness.

(vi) State of Mysore Vs. M.H. Krishna Murthy and Others, State of Mysore v. M.H. Krishna Murthy and Ors. There the Supreme Court was considering classification/distinction made between two wings of the same service for promotional chances by framing a Rule ''and the validity of that Rule was challenged. The Supreme Court pointed out as follows:

(a) The case of a person cannot be ignored simply on the assumption that the sources of their initial recruitment debar the consideration of there merit or promotion.

(b) Article 14 and 16(1) of the Constitution must be held to be violated when members of one class are not even considered for promotion.

On the backdrop of this law, now let us have a look at the validity of the Rules in the instant case.

(i) Under the present set of Rules, the post of Comptroller cannot be manned by a person holding a service under the University as always it is to be filled in by deputation from the Finance Deptt. of the State Govt. or from the A.G. Office.

(ii) It is not clear as to what grade of Officer from the Finance Deptt. or A.G. Office shall be brought on Deputation. This has left the possibility of Pick and Choose and may open doors for nepotism and Favoritism.

(iii) The Rule does not mention what will be the period of deputation. A person may be brought on deputation for any period as may be fixed by the authority. This is unguided and unrestricted power. The impugned Clause is discriminatory and based on unreasonable classification without any nexus with the object of the main Act. It is not known as to why the employees of the University with qualification and experience are to be debarred from holding the post. It excluder, equally even more qualified persons serving in the University.

(iv) Section 41 of the Act under which the statue is framed does not empower making a provision whereby some persons although otherwise qualified can be left out altogether from the post of Comptroller. So, it appears that this impugned clause is beyond the purview of the Act so far it provides that the post of Comptroller shall be filled by deputation from the Finance Deptt. or from the A.G. Office.

(v) The promotional avenues of the employees for this particular post is blocked without any rational or reasonable basis and it appears to be violative of Articles 14 & 16 of the Constitution.

(vi) A case may arise where a person from the Finance Deptt. or A.G. Office may compete with a particular person for the post of Deputy Comptroller (as it is selection, post) and he is selected for the post of Deputy Comptroller but the same man may be brought on deputation as Comptroller over the head of the persons who appeared alongwith other persons for the selection of the post of Deputy Comptroller.

(vii) As will appear from paragraph 15 of the Writ petition by order dated 2.1.93 passed by the Registrar, A.A.U. one Shri N. Nandi whose retirement was due on 31.3.93 was sought to be appointed on deputation for two years by extending his service. This shows how the power may be exercised in a most arbitrary and un-reasonable manner. Neither the Assam Financial Rules, 1963 nor the Statute of A.A.U. provides for bringing any retired govt, servant on deputation for the post of Comptroller by extending his service but that is what is sought to be done by the authority of A.A.U. by taking resort to this clause.

(viii) The persons who may be brought on deputation by the authority because of this rule may be absolutely a junior person and the Act did not give such power to the authority to frame rule in such a manner as to give unreasonable, unbridled and uncanalised power.

(ix) There is no rational, or reasonable differentia for the exclusion of the Officers of the University for being considered for the post of Comptroller.

For all the reasons, the Clause 2 of Chapter (III) of the Assam Agricultural University First Statute regarding Comptroller providing as follows:

The Comptroller shall be either from the Finance Deptt. of the State Govt, or from the A.G. Office and will be appointed on deputation term" is struck down as invalid and void.

The Writ application accordingly is allowed and as this clause has been struck down, the appointment of Respondent No. 4 vide order dated 2.1.93 passed by the Registrar, Assam Agricultural University, Annexure-1 to the Writ application is also quashed.

Writ Application accordingly stands disposed of.