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Sharad S/O Simon Sontakey Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 1518 of 1983
Judge
Reported in1986(2)BomCR662
ActsNagpur University Act, 1974 - Sections 24, 24(1) and 39
AppellantSharad S/O Simon Sontakey
RespondentState of Maharashtra and ors.
Appellant AdvocateP.N. Chandurkar, Adv.
Respondent AdvocateA.A. Desai, A.G.P., for respondent Nos. 1, 2, and 4 and ;S.A. Bobde, Adv. for respondent No. 3 and ;S.K. Sanyal, Adv. for respondent No. 5
Excerpt:
.....to strength of batch not part of question of fixation of workload of lecturer - determination of batch strength through resolution passed by executive council (ec) valid - for above purpose ec need not pass any ordinance - sufficient work load in senior college - petitioner ordered to be reverted back to senior college - original pay scale to be restored. - - 700-1600/- which was made applicable with effect from july 1, 1975. 3. the introduction of new pattern of education from the academic year 1975-76 created certain problems like surplus teachers in the senior colleges. it appears that the ad hoc committee making the report retained this strength of a batch for practicals and tutorials as recommended by the executive council prior to the date of the report. 500-9000. the action..........by the administrative officer was wholly illegal as the executive council of nagpur university has passed a resolution in exercise of statutory powers on march 27, 1979 reducing the strength of a batch for practicals in under-graduate classes to the figure of 16 instead of 20. in accordance with this resolution, there would be sufficient workload in the senior college to enable the petitioner to continue as lecturer in the higher scales and it would not be necessary to revert the petitioner to the junior college. in the answer to the petition, shri d.s. pantoji, administrative officer, higher education (grants), nagpur has filed return, sworn on march 26,1984 and it is not disputed that instructions were issued to the principal of hislop college to revert the petitioner to the junior.....
Judgment:

M.L. PENDSE, J.

1. By this petition filed under Article 226 of the Constitution of India, the petitioner is seeking to quash the order dated May 11, 1983 issued by respondent No. 3, Principal of the Hislop College, Nagpur informing the petitioner that the petitioner's pay is refixed in the pay scale of Rs. 500-900 with effect from the academic year 1981-82.

2. The facts giving rise to the petition are not in dispute and are required to be briefly stated to appreciate the grievance of the petitioner. The petitioner secured M. Sc. Degree in the subject of Zoology from the Nagpur University in the year 1967 and was appointed as Demonstrator in the subject of Zoology in the Hislop College at Nagpur. The petitioner joined duties on July 1, 1972 in the scale of Rs. 250-15-400 and was confirmed in that post with effect from July 1, 1972. The pay scales of Demonstrator were subsequently revised to Rs. 500-20-700-25-900 in accordance with the recommendations of the University Grants Commission. The revised scale of pay of lecturers working in the Colleges was Rs. 700 to 1600/-. The revised scales of pay were implemented by the Non-Government Colleges affiliated to Nagpur University with effect from January 1, 1973. The Government of Maharashtra introduce 10 + 2 + 3 pattern of education in the Universities in the State of Maharashtra with effect from July 1, 1975. The entire scheme of introduction of pattern of education was brought by Government Resolution dated June 11, 1976. A degree course of 3 years duration was introduced as per new pattern of education and the colleges conducting 3 years' degree course were termed as senior colleges. Two years of education i.e. XIth and XIIth classes were to be conducted by junior colleges in accordance with the new pattern of education. The State Government issued another Government Resolution dated October 25, 1977 where by the posts demonstrators were up-graded to those of lecturers and revised scales of lectures were made applicable to these up-graded posts. The demonstrators were up-graded to the post of lecturers provided they comply with certain requirements and hold certain qualifications. It is not dispute that the petitioner was holding requisite qualifications and was in fact up-graded to the post of a lecturer and was paid the salary in the scale of Rs. 700-1600/- which was made applicable with effect from July 1, 1975.

3. The introduction of new pattern of education from the academic year 1975-76 created certain problems like surplus teachers in the senior colleges. To over-come these problems, Government of Maharashtra issued Government Resolution providing method for accommodating various surplus teachers in senior colleges. The teachers were divided into 5 categories as P-1 to P-5. The resolution provided that the teachers placed in categories 1 to 3 will not be disturbed both as regards the status and their scales of pay in spite of the fact that they may become surplus in accordance with the new pattern of education in a particular college. As regards P-4 category to which the petitioner belonged, the resolution provided the status and the pay scales of such teachers would be maintained provided such teachers are not found surplus in the colleges in which they are functioning. In case the teachers belonging to P-4 category were found surplus, then the resolution provided that such teachers would be accommodated in junior colleges albeit on low scales. To give effect to the categorisation of various teachers and to work out the implementation of new pattern of education, the Government of Maharashtra directed various Universities in the State to form ad hoc committees and accordingly, an ad hoc committee was formed by the Nagpur University to give effect to the directions of the State Government. The ad hoc committee was constituted on June 11, 1976 and on August 19, 1978 made its report providing inter alia the norms regarding the work the work load for various subjects in various faculties. A copy of this report is annexed as R-11 to the return filled on behalf of the Hislop College and a perusal of the same would indicate that in regard to the science faculty for B.Sc. Part-1 in the subject of Zoology 6 periods per week for theory and 4 periods for practical per week were prescribed. In regard to the subject of Zoology subject Part-II and Part III theory and practical periods were 6 each. Prior to this date by various resolutions passed on April 2, 1977, July 11, 1977 and September 2, 1977, Executive Council of Nagpur University provided that the strength of a batch for practicals and tutorials for under-graduate classes shall be 20 with an addition of 10% with the permission of the Vice-Chancellor. It appears that the ad hoc committee making the report retained this strength of a batch for practicals and tutorials as recommended by the Executive Council prior to the date of the report. Subsequently, the Executive Committee passed a fresh resolution on March 27, 1979 providing for reduction of the strength from 20 to 16 in respect of a batch for practicals and tutorials for under-graduate classes.

4. The petitioner who was working in the senior college and drawing revised scales prescribed by the U.G.C. for the post of a lecturer received letter dated June 21, 1981 from the principal of Hislop College, Nagpur communicating that he has been assigned the teaching work in the junior college with effect from June 26, 1980 since there is no work-load in the senior college. The effect of the transfer of the petitioner from senior college to junior college resulted into reduction of his pay scale in the grade of Rs. 500-900 The order was issued by the principal on receipt of instructions from the Officer on Special Duty. Higher Education (Grants), Nagpur. The said Officer gave instructions to the Principal of the Hislop College as the College Management is receiving grant from the State Government and the instructions were issued obviously on the basis of the report made by the ad hoc committee prescribing the strength of students in a batch as 20 for the purpose of tutorials in the under-graduate classes. On receipt of his letter, the petitioner made representation to the Principal who, in his turn, forwarded it to the Officer on Special Duty. By letter dated January 30, 1981, the officer on Special Duty informed the principal that the pay fixation of the petitioner in the Junior college should be treated as cancelled in view of the Government directives issued vide Circular dated September 1, 1980. The Officer on Special Duty recited in the letter that the norms laid down by the ad hoc committee are not to be considered so far as old staff is concerned. As the order passed by the Officer on Special Duty was cancelled, the petitioner continued to work as lecturer in the senior college in the scale of Rs. 700-1600. There after on May 11, 1983 the Principal of Hislop College issued office order whereby the petitioner was informed that the Administrative Officer, Higher Education (Grants), Nagpur Region has revised and refixed the pay scale of the petitioner in the grade of Rs. 500-900 from the academic year 1981-82 and the petitioner should be absorbed in the Junior College as sufficient workload is not available In the Senior College. The refixation of the pay scale was done with the retrospective effect from the commencement of academic year 1981-82. The Principal issued the office order in view of the letter dated May 9, 1983 received from the Administrative Officer, Higher Education (Grants) Nagpur Region, Nagpur. The result of this action was that the petitioner was again reverted back to the Junior College with consequential loss of salary, his pay scale having been brought down from Rs. 700-1600 to Rs. 500-9000. The action on the part of the Principal has given rise to the filling of the present petition on July 1, 1983.

5. The grievance of the petitioner is that the Administrative Officer was clearly in error in coming to the conclusion that there was not sufficient workload available in the Senior College for the petitioner on the basis of the report made by the ad hoc committee on August 19, 1978 which inter alia prescribed that the strength of a batch for practicals for under graduate classes shall be 20 in number. The petitioner complains that the reliance on the report of the ad hoc committee by the Administrative Officer was wholly illegal as the Executive Council of Nagpur University has passed a resolution in exercise of statutory powers on March 27, 1979 reducing the strength of a batch for practicals in under-graduate classes to the figure of 16 instead of 20. In accordance with this resolution, there would be sufficient workload in the Senior College to enable the petitioner to continue as lecturer in the higher scales and it would not be necessary to revert the petitioner to the Junior College. In the answer to the petition, Shri D.S. Pantoji, Administrative Officer, Higher Education (Grants), Nagpur has filed return, sworn on March 26,1984 and it is not disputed that instructions were issued to the Principal of Hislop College to revert the petitioner to the Junior College due to lack of work-load on the strength of recommendations made by the ad hoc committee on August 19, 1978. The return also does not dispute that in case effect is given to the Ordinance of March 27, 1979 passed by the Executive Council as claimed by the petitioner, then it would not be necessary to directing the posting of the petitioner in the Junior College as there would be enough work-load for the petitioner in the Senior College. The Administrative Officer accepts the position that the work-load for the Senior College in Hislop College is determined by considering a batch of 20 students for science practicals. The return asserts that the cancellation of the order reverting the petitioner to the Junior College in the year 1981 was passed due to inadvertence and without realizing that the strength of a batch for practicals was 20 instead of 16. The Register of Hislop College has also filed return on October 5, 1984 and it is claimed that the principal has issued the order posting the petitioner in the Junior College in a lower scale pay only due to instructions issued by the Administrative Officer. The Register of Nagpur University who is jointed as respondent No. 5 to the petition, has not filed any return, but at the hearing, both the Hislop College authorized and the Registrar supported the claim of the petitioner.

6. Shri Chandurkar, learned Counsel for the petitioner submitted that though the ad hoc committee appointed by the Nagpur University had made a report on August 19, 1978 prescribing for certain number of practicals for the subject of Zoology and had fixed the norms regarding the workload for various subject, it was wrong on the part of the Administrative Officer to place reliance upon those norms while giving directions to the Principal to the year 1983. It was urged by the learned Counsel that the Administrative Officer has clearly overlooked the Ordinance passed by the Executive Council of Nagpur University on March 27, 1979. Shri Chandurkar submits that if the workloads in the Senior College is determined with reference to the strength of a batch for practical as prescribes by Ordinance dated March 27, 1979, then the petitioner could not be posted in the Junior College on the ground of insufficiency of workload in the Senior College. The submission of Mr. Chandrukar was seriously controverted by the learned Assistant Government Pleader by pointing out that the Executive Counsel has not passed any Ordinance on March 27, 1979. The learned Assistant Government Pleader pointed out that Ordinance No. 143 provides for merely 3 Appendix A, B, C and the resolution which was passed by the Executive Counsel on March 27, 1979, or even the earlier resolutions dated April 2, 1977, July 11, 1977 and September 2, 1977 do not form part of the Ordinance No. 143. On perusal of the relevant Ordinance it becomes clear and indeed Shri Chandurkar very fairly conceded that the decision or the resolution passed by the Executive Council including the resolution darted March 27, 1979 whereby the strength of a batch for practicals was reduced from 20 to 16, did not form part of the Ordinance. The learned Assistant Government Pleader then submitted that if the Executive Council has not issued any Ordinance reducing the strength of a batch, then it is open for the Administrative Officer of the State Government to issue directions to the principal of the Hislop College determining the workload with reference to the report made by the ad hoc committee. Shri Chandurkar, on the other hand, points out that even if the resolution of the Executive Council is not translated into Ordinance, still the resolution by itself has statutory force and will have to be implemented in supersession of the recommendation made by the ad hoc committee.

7. To appreciate the submission of Shri Chandurkar, it would be necessary to refer to the relevant provision of the Nagpur University Act, 1974 (hereinafter referred to as the 'Act'). Section 4(1) of the Act inter alia prescribes that the University shall have the powers to provide for instruction, teaching and training in such branches of learning and courses of studies as the University may, form time to time, determine. The University which is a statutory independent body exercise its functions through Senate, Executive Council, Faculties, Board of Studies etc. and the Act specifically sets out the powers and duties of each of the authorities. It is not in dispute that in regard to any academic question like providing for instruction in particular subject or fixing the strength of a batch of students in a particular class, the proposal emanates from the Board of Studies and is forwarded to the Academic Council. After receipt of an approval from the Academic Council, it reaches to the Executive Council which takes a decision subject to the approval of the Vice- Chancellor. Section 42(1) of the Act inter alia provides that the Senate shall make Statutes to provide for the duties to be performed and workload to be assigned to each category of post and the expression 'post' includes teachers in carious colleges affiliated to the University. It is, therefore, obvious that the workload to be assigned to each of the lecturers in the affiliated colleges of the Nagpur University is to be determined by statute to be passed by the Senate. The learned Counsel for the University invited our attention to Statute No. 8 of 1979 passed by the Senate which inter alia prescribed for the workload of teachers. It sets out that a teacher in a college will have workload of not less than 40 clock hours in a week and out of these hours, 15 clock hours have to be devoted to class-room for lecturing work and the remaining time shall be spent on tutorials, seminars and science practical demonstrations. It is necessary to mention that there is no statute passed by the University of Nagpur prescribing any strength of students in a particular batch for practicals in the under-graduate classes. It was contended on behalf of the State that the University can prescribe the strength of a batch for practicals for under-graduate classes only by passing a valid statute under the Act, because fixation of strength of a batch is really a part and parcel of determination of workload for a teacher. On the other hand, it was urged on behalf of the petitioner supported by the College and University authorities that the questions to what should be the strength of a batch for practical is not a part of the question of fixation of workload of a lecturer and, therefore, it is not necessary for the University to pass a statute for determination of strength of a batch. The submission urged on behalf of the petitioner is sound and deserves acceptance.

8. Section 24(1)(i) of the Act prescribes powers and duties of the Executive Council and inter alia provides that the Executive Council shall exercise power and perform duties of making provisions for instruction, teaching, guidance and training in such branches of learning and courses of studies, as it thinks fit. The power conferred power conferred under section 24(1)(i) enables the Executive Council to determine what shall be the strength of a batch for practicals in the Under-graduate classes. The power enables the Executive Council to make provisions for imparting instruction and regulating the method of imparting of education as it think fit. The power of section 24(1)(i) of the Act is very wide and in our judgment, perfectly authorizes the Executive Council to provide as to what should be the strength of a batch for practicals is the under-graduate classes. It was urged on behalf of the State that while fixing the workload of a teacher, it is not enough merely to take into consideration have many hours the lecturer would deliver lectures or attend to the practicals and tutorials, by the workload has to be determined by taking into consideration the number students to whom the lectures are delivered and over whom the lecturer is required to supervise for carrying out the practicals It may be that in a given situation, for determination of workload the authority may take into consideration the number of students in a batch, but a perusal of the statute passed by the Nagpur University leaves no manner of doubt the workload was fixed without taking into account the number of students in a batch for practicals of under-graduate cases. Once it is clear that the statute is silent as regards the strength of a batch for practicals, then it is obvious that the Executive Council has ample powers to determine the strength of a batch in accordance with section 24(1)(i) of the Act. In our judgment, the Executive Council has exercised that power by passing resolution dated March 27, 1979 and effect will have to be given to that resolution. It was contended on behalf of the State that a mere resolution passed by the Executive Council would have no statutory force unless it is converted into Ordinance. We are unable to accept the submission in view of clear provisions of section 39 of the Act. Section 39 of the Act sets out that the Executive Council may make Ordinance to provide for subjects which are set out in the section and a perusal of the same makes it clear that the subject of fixing the strength of a batch for practicals in the under-graduate classes is not covered by and of the entries of section 39. It is, therefore crystal clear that the Executive Council could not have passed the Ordinance providing for fixation of strength of a batch for practicals and the power could be exercised only by passing the resolution. It cannot be even suggested that it is necessary for the Executive Council to enforce its power only by passing Ordinances. Ordinances are required to be passed only in respect of subjects which are set out in section 39 of the Act and there large number of other subjects over which the Executive council has power and the decision in those subjects can be taken by passing resolution and effect must be given to that as exercise of power is statutory in nature under section 24 of the Act. In our judgement, it was not necessary for the Executive Council to issue any Ordinance to translate its decision taken by the resolution dated March 27, 1979. The submission urged on behalf of the State Government that no effect can be given to the resolution as it has no statutory force is wholly misconceived. The resolution was passed by the Executive Council under section 24 of the Act and that is undoubtedly exercise of statutory power. In our judgment, once a valid resolution passed by the Executive Counsel in exercise of statutory power, than it must be given effect and implemented.

9. It was then submitted on behalf of the State Government that the resolution of March 27, 1979 has no effect of superseding recommendations made on August 19, 1978. We are unable to appreciate any force in the submission. The ad hoc committee has made the report on the basis of the resolution passed earlier by the Executive Council prescribing 20 students for a batch in practicals in the under-graduate classes. The ad hoc committee's report in the Year 1978 was in accordance with the existing resolutions passed by the Executive Council of the Nagpur University. On the Executive Council passing fresh resolution dated March 27, 1979 reducing the strength of a batch from 20 to 16 it would not be open for the Administrative Officer to still fall back on the recommendations of the Advisory Committee which was make on the basis of the earlier resolution by the Executive Council. The earlier resolutions having been superseded by the Executive Council by subsequent resolution dated March 27, 1979, the Administrative Officer was duty bound to give accept to the same. It is necessary to remember that the University is a statutory body which is wholly independent form the State control and all academic decisions have to be left to the University and when the University authorities exercise their statutory power, the Administrative Officer is bound to give effect to the same. In our judgment, the workload in the Senior College in Hislop College ought to have been determined with reference to the strength of a batch as 16 students for practicals in the under-graduate classes and on such determination, the petitioner could not have been termed as surplus in the Senior College. The directions issued by the Administrative Officer to the Principal, therefore, are clearly invalid and cannot be sustained. The College authorities have make it clear that the petitioner was required to be posted in the Junior College on the lower scales in view of the directions issued by the Administrative Officer and, therefore, the consequential order passed by the Principal must fall to the ground.

10. Accordingly, the petition succeeds and the rule is made absolute in terms of prayer Clauses (i) and (ii). The petitioner would be entitled to receive the difference in salary between what is drawn and what he would have been entitled to draw in case the impugned order was not issued by the Principal. In the circumstances of the case, there will be no order as to costs.


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