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Judgment
Arun Mishra, J.
For the reasons enumerated in the order passed today in W.P. No. 3032 of 2001 (Smt. Nirmala Dubey V. State of M.P. & ors. ), this writ petition is allowed. The order of removal of petitioner dated 31.5.2001 is quashed. Petitioner is directed to be reinstated with backwages. Backwages be paid within two months. Costs on parties.
All the petitioners assail the order of their removal from service owing to closure of certain courses. The termination orders were issued on 31.5.2001 (Annexure-P/11 in W.P. No. 3032/2001).
The petitioners were appointed on various dates, some of them were confirmed and were appointed on probation basis and claim that they should be treated as confirmed employees. A decision was taken by the Board of Management, constituted u/s 17 of the Maharishi Mahesh Yogi Vedic Vishwavidyalaya Adhiniyam, 1995 [hereinafter referred to as the "Adhiniyam"]. Initially a decision was taken on 30.5.2000 with respect to courses which were to be closed in the educational session 2000-2001. However, it appears that final decision was taken by the Board of Management to close the courses and to remove the employees in its meeting dated 14.3.2001 which is the basis of the order of removal issued on 31.5.2001. The ground on which the decision was taken that number of students were not sufficient in the various courses, which were decided to be closed down. The recommendations: of the Academic Council were accepted by the Board on 14.3.2001. Thus, the decision was taken to abolish certain courses and remove the petitioners pursuant to the resolution R/8 dated 14.3.2001 of the Board of Management, the termination orders were issued.
The case of the petitioner is that the constitution of the Board of Management as provided u/s 17 underwent legislative change. Amenmdment Act No. 5 of 2000 was enacted by the State Legislature amending the section 17 of the Adhiniyam. Prior to the amendment, Section 17 ran as under:
the Board of Management - (1) The Board of Management shall be the Principal executive body of the University and shall consist of-
(i) Vice-Chancellor;
(ii) Pro-Vice-Chancellor;
(iii) Dean of Schools of studies to be appointed by the Vice-Chancellor by rotation according to seniority;
(iv) One Head of Department of the University, who is not a Dean, to be nominated by the Vice-Chancellor by rotation according to seniority.
(v) One professor, who is not a Dean or Head, to be appointed by the Vice-Chancellor by rotation according to seniority;
(vi) One Reader, who is not a Head to be appointed by the Vice-Chancellor by rotation according to seniority;
(vii) One Lecturer to be appointed by the Vice-Chancellor by rotation according to seniority;
(viii) Secretary in charge of Higher Education or his nominee;
(ix) four persons of distinction in Vedic education and or public life to be nominated by the Chancellor.
(2) All members of the Board of Management, other than ex-officio members, shall hold office for a period of three years from the date of their nomination or appointment as such.
(3) Seven members of the Board of Management shall form quorum for the meeting of the Board.
Amendment Act No. 5 provided for the amendment, which reads as under:
In Section 17 of the Principal Act, in sub-section (1)-
(a) for clause (viii), the following clause shall be substituted, namely:
(viii) Principal Secretary/Secretary-in-charge of Higher Education Department or his nominee not below the rank of Deputy Secretary.
(b) for clause (ix), the following clauses shall be substituted, namely:
(ix) two renowned scholar in the field of education to be nominated by the State Government;
(x) Four persons of distinction in Vedic education and public life to be nominated by the Chancellor.
Clause (viii) of sub-section (1) of section 17 was amended, instead of Secretary Incharge of Higher Education or his nominee, Principal Secretary/ Secretary in charge of Higher Education Department or his nominee not below the rank of Deputy Secretary, are to be to members of Board of Management and clause (ix) was also incorporated to include two renowned scholar in the field of education to be nominated by the State government and clause (ix) of sub-section (1) of Section 17 re-numbered as clause (x).
Petitioners submit that Board of Management was not reconstituted as per the amendment of section 17. Thus, it cannot be said that the decision was taken by the duly constituted Board of Management in accordance with section 17, as it prevailed on 14.3.2001. It did not include the renowned scholars in the field of education to be nominated by the State Government. The constitution of the Board of Management itself was defective, as such the decision taken by the Board of Management is illegal and bad in law.
It is also urged by the petitioners that the respondents did not make any serious efforts to absorb the petitioners on other appropriate posts which were available. No thought was given to that aspect of the matter. There is individual grievance about the non-payment of salary raised in W.P. No. 3032/ 2001 for the period May, 1999 to October 1999.
Petitioners submit that Ordinance No. 15 framed under the Adhiniyam provides for the courses which were decided to be abolished. Until unless the Ordinance was amended in accordance with the procedure prescribed in section 39 of the Adhiniyam, the Board of Management was not competent to take decision to abolish the courses.
A return has been filed on behalf of the respondents, they contend that the services of the petitioners have been terminated in accordance with the terms and conditions of the appointment by following law. The services could be terminated without assigning any reason. The State Legislature made extensive amendment in the Adhiniyam by Amendment Act. No. 5/2000, according to which the University can only teach pure vedic subjects. The amendment has been challenged before this Court in W.P. No. 1065/2000. Maharishi Mahesh Yogi Vedic Vishwavidyalaya is an Autonomous University created under the statute. The principal executive body of the University is the Board of Management constituted u/s 17, which comprises of the persons and functions enumerated in the said provision. It is prerogative of the Board of Management to create administrative and other posts and make appointments thereto in the manner prescribed by the Ordinance. Services of the teacher can be terminated by giving one month''s notice or salary of one month in lieu of notice. The University came into existence under the enactment from the year 1996. It prescribes various courses as mentioned in Ordinance No. 15 (Annexure R-II). There were about 35 campuses and centers in various parts of the undivided State of Madhya Pradesh is fond hope and with expectation, that in respect of the courses it shall get encouraging response from the students for admission, which could make the courses purposeful and viable. The list of Centers and Campuses in Annexure R-III. The University incurred the capital expenditure of nearly 13 crores in establishment of the University and the centers, besides about Rs. 30 crores were spent for purchase of land and construction work. Details of expenditure are shown in Annexure R-IV. Respondents contend that the University has been incurring expenditure to the extent of 38.85 lacs whereas, as against the capital investment and recurring expenditure the inflow of students has been in a very dismal proportion. The University however, in spite of having waited for some time did not receive good and encouraging response which called for an administrative review by the Board of Management. Respondents contend in para 8 of their return that administrative decision was taken to close 19 centers and abolish the courses. Minutes of the meeting dated 30.5.2000 are shown as Annexure R-V. The recommendations of the Academic Council and the Finance Committees were taken into consideration as contained in Annexure R-VI. Thereafter the matter was placed for final decision before the Board of Management on 14.3.2001, which unanimously took decision to abolish 60 posts, as contained in Annexure R-VIII. They have taken the decision to abolish the course bonafidely. They followed the principles of last come first go, through the University was under no lawful obligation, yet it has offered compensation in addition to one month''s salary to the persons whose services were no longer required. Thus, the decision is unassailable.
It is not disputed at the bar that as per the amended provision, Board of Management has not been reconstituted, hence, new member were not inducted as per amendment made in Section 17. Thus constitution of Board of Management cannot be said to be complete in accordance with amended section 17, hence, before inclusion of members no business valid in the eye of law could be transacted by Board of Management. The constitution of Board has to be as per amended provision, which cannot be allowed to become a statutory mockery. The provision was not given effect to by the University for which no valid reason exist. The only ground taken is that and some of the provisions of amendment Act are under challenge before this court in W.P. No. 1065/2000, which is pending. It is not shown that courses in question are such which can not be run as per amendment made above writ petition challenges curtailment of certain other courses. There is no stay granted by this Court in the said writ petition. The provisions as inserted by the amendment Act of section 17 are operative and were promulgated on 24.10.2000. Through retrospective effect was given to the amendment Act, it was made applicable w.e.f. 3.2.2000. We need not go into the question whether the decision taken by the Board of Management before the Amendment was published in October 2000 are valid or not, suffice it to say that as per case set up by the respondents themselves in the return, final decision was taken by the Board of Management on 14.3.2001 (Annexure R-VIII) and it is not disputed that this decision was taken by the Board of Management constituted as per pre-amended provision. The provisions inserted in the Act has been given a go by without justifiable cause. Thus, it cannot be said that duly constituted Board has taken the decision on 14.3.2001 to close the course and to remove the employees. The decision suffers with statutory non-compliance of provision of section 17.
Though it is not necessary to go into further submission raised by the petitioner that without amendment of Ordinance 15, power was not with the Board of Management or academic council to decision to abolish the course, the submission does not appear to be sound prima facie. It is only the mode of formation of Statutes, Ordinances and Regulations provided u/s 39, once they are made, the power lies with the academic council/Board of Management to take appropriate decision to run the courses which they desire. Merely inclusion in the Ordinance which enable university to run a course cannot come in the way of taking decision to abolish one or the other course.
Though it is not necessary to go into further question, suffice it to observe that if a decision is taken by properly constituted board of management to close the courses first an effort has to be made to appoint petitioners on such post for which they are qualified and may be lying vacant at several places. This process be first adverted to by the University before taking any decision to remove the petitioners.
In the case of Nirmala Dubey-W.P. No. 3032/2001, with respect to dispute as to the salary from May, 1999 to October 1999, it does not appear that it is seriously disputed that the petitioner had rendered service for the aforesaid period. However, the respondents contents that on receipt of bill after its verification, they will make the payment to the petitioner Nirmala Dubey. It is directed that the claim of Nirmala Dubey in W.P. No. 3032/2001 with respect to salary from May 1999 to October 1999 be decided within one month and amount be disbursed in same period as may be found due on verification.
Resultantly, all the writ petitions are allowed. The orders of removal of petitioners dated 31.5.2001 are quashed, they are directed to be reinstated with backwages. Backwages be paid within two months. Costs on parties.