Court No.

- 29
Case :- WRIT - A No. - 4178 of 2015
Petitioner :- Dr. Suchitra Mitra And Anr.
Respondent :- Union Of India And 2 Ors.
Counsel for Petitioner :- R.K. Srivastava,Dr. Y.K. Srivastava
Counsel for Respondent :- A.S.G.I.,Krishna Agrawal,Ram Gopal Tripathi,
V.K. Singh, Senior Advocate

Hon'ble Dilip Gupta,J.

Hon'ble Vinod Kumar Misra,J.
The petitioners are Associate Professors in the Department of Sanskrit

in the University of Allahabad1. They have filed this petition for a direction

upon the respondents to convene a meeting of the Selection Committee so that

they may be considered for grant of promotion on the post of Professors under

the Career Advancement Scheme2 which has been framed by the University

Grants Commission under the provisions of the University Grants

Commission Regulations on Minimum Qualifications for Appointment of

Teachers and Other Academic Staff in Universities and Colleges and Measures

for the Maintenance of Standards in Higher Education 20103.

It is stated that the University is incorporated under the provisions of the

University of Allahabad Act, 20054. The University Grants Commission by a

notification dated 30 June 2010 has notified the 2010 Regulations under

clauses (e) and (g) of sub-section (1) of Section 26 of the University Grants

Commission Act, 1956 in supersession of the earlier University Grants

Commission Regulations, 2000. The Regulations apply among others to, every

University established by or under a Central Act or a State Act.

The procedure for selection for promotions under the Scheme is

1 'the University'
2 'the Scheme'
3 'the 2010 Regulations'
4 'the Act'
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provided for in clause (6) of the 2010 Regulations. According to the

petitioners they fulfil all the eligibility criteria for being considered for

promotion as Professors under the Scheme.

The petitioners have asserted that the office of the Vice Chancellor of

the University fell vacant and presently in terms of Statute 2 (6) of the Statutes

of University, the senior most Professor in the University is holding the office

of the Vice Chancellor of the University and though he is required to perform

the duties of the Vice Chancellor until a new Vice Chancellor assumes office,

meetings of the Selection Committee for granting promotion under the

Scheme are not being convened.

A counter affidavit has been filed on behalf of the University. It has

been stated that on the resignation of the regular Vice Chancellor of the

University, the senior most Professor of the University namely Professor N.R.

Farooqui took over the charge of the Vice Chancellor of the University on 28

July 2014. It has further been stated that it is because of the communications

dated 7 August 2014 and 9 October 2014 sent by the Ministry of Human

Resources and Development in the Department of Higher Education that the

Acting Vice Chancellor of the University is not convening the meetings of the

Selection Committee.

It is the submission of Dr. Y.K. Srivastava, learned counsel appearing

for the petitioners that the restrictions contained in the communications dated

7 August 2014 and 9 October 2014 which require the Acting Vice Chancellor
 3

of the Universities to act in accordance with Rule 12(2) of CCS(CCA) Rules,

1965 and perform routine nature of work of the University including meeting

appointments on temporary basis and convening the meetings of Committees

like Finance Committee, Executive Council and Academic Council but

excluding taking any decision for amending the Statutes, introducing new

Ordinances or amending the Ordinances, appointment of permanent teaching

and non teaching staff, creation of new posts would not be applicable to the

University. It is his submission that Acting Vice Chancellor of the University

has to function in accordance with the provisions of the Act and the Statutes of

the University and since there is no provision in the Act or the Statutes which

prohibits the Acting Vice Chancellor from making permanent appointments,

the Ministry of Human Resource Development in the Government of India

cannot restrict the powers of the Acting Vice Chancellor. Learned counsel

submitted that, in fact, in view of provisions of Statute 2(6) of the Statutes of

the University, the Acting Vice Chancellor has an obligation to perform all the

duties of the Vice Chancellor.

Learned counsel for the petitioner also pointed out that the Executive

Council of the University in its meeting held on 20 September 2014 had

resolved to grant promotion to Associate Professors and Assistant Professors

in the Department of Botany, Earth & Planetary Science, Defence Studies and

Commerce under the Scheme and, therefore, promotion to the petitioners on

the basis of the aforesaid communications is being denied for arbitrary

reasons. In this connection learned counsel has placed before the Court the
 4

communication dated 22 December 2014 sent by the Deputy Registrar

(Administration) a copy of which has been enclosed as Annexure-6 to the writ

petition.

Sri V.K. Singh, learned Senior Counsel appearing for the University has,

however, submitted that meeting of the Selection Committee in the

Department of Sanskrit for granting promotion under the Scheme is not being

convened solely for the reason that the Government of India has sent the

communications dated 7 August 2014 and 9 August 2014 wherein the Acting

Vice Chancellor of a Central University has been prohibited from making any

permanent appointment.

Sri Ashok Mehta, learned Additional Solicitor General of India assisted

by Sri Krishna Agarwal has defended the two communications sent by the

Ministry of Human Resource Development in the Government of India. It is

his contention that it is in the interest of a University that the Acting Vice

Chancellors should not make any permanent appointments.

We have considered the submissions advanced by learned counsel for

the parties.

It is not in dispute that at present the office of the Vice-Chancellor of the

University is vacant. Professor N.R. Farooqui has been functioning as the

Acting Vice Chancellor of the University since 28 July 2014. Statute 2(6) of

the Statutes of the University provides that if the office of the Vice Chancellor

becomes vacant due to death, resignation or otherwise, or if the Vice-

 5

Chancellor is unable to perform his duties due to ill-health or any other cause,

the Pro Vice-Chancellor shall perform the duties of the Vice Chancellor but if

the Pro-Vice Chancellor is not available, the senior most Professor shall

perform the duties of the Vice Chancellor until a new Vice Chancellor assumes

office or until the existing Vice -Chancellor resumes the duties of his office. It

is, therefore, clear that in the absence of Pro-Vice Chancellor of the

University, the senior most Professor in the University has to perform the

duties of the Vice Chancellor until a new Vice Chancellor assumes office.

The Vice Chancellor is an 'Officer' of the University as provided for in

Section 12 of the Act. Section 14(2) of the Act provides that the Vice-

Chancellor of the University is the principal executive and academic officer of

the University and shall exercise general supervision and control over the

affairs of the University and give effect to all the decisions of the authorities

of the University. The Vice Chancellor under sub Section (5) of Section 14

exercises such other powers and performs such other duties as may be

prescribed by the Statutes or the Ordinances.

Statute 3 provides that the Vice Chancellor shall be the ex Officio

Chairman of the Executive Council, the Academic Council and the Finance

Committee and shall in the absence of the Chancellor, preside at the

Convocations held for conferring degrees and at meetings of the Court.

Statute 3 (3) provides that it shall be the duty of the Vice Chancellor to

see that the Act, the Statutes, the Ordinances and the Regulations are duly
 6

observed and he shall have all the powers necessary to ensure such

observance.

Statute 3(5) provides that the Vice-Chancellor shall have the power to

convene or cause to be convened the meeting of the Executive Council, the

Academic Council and the Finance Committee.

Statute 10 provides that the Executive Council has to appoint

Professors, Readers, Lecturers and other Academic Staff, as may be necessary

in the University.

An Acting Vice Chancellor would, therefore, be the Chairman of the

Executive Council, and would have the power to convene meetings of the

Selection Committee. This is a power which is not only vested in the Vice

Chancellor of the University but is a power which is also vested in the Acting

Vice Chancellor of the University.

It is in the light of the aforesaid provisions of the Act and the Statutes

that the impact of the two communications dated 7 August 2014 and 9 October

2014 sent by the Ministry of Human Resource Development has to be

examined. We, therefore, consider it appropriate to reproduce the said two

letters.

The letter dated 7 August 2014 sent by the Ministry of Human Resource

Development in the Department of Higher Education, which is addressed to

all the Vice Chancellors of the Central Universities, is as follows:-

“I would like to bring it to your kind notice that as

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per the provisions or Rule 12(2) of CCS (CCA) Rules,

1965 an officer appointed to perform the current duties of
an appointment can exercise administrative or financial
power vested in the full fledged incumbent of the post but
he cannot exercise statutory powers, whether those powers
are derived direct from an Act of Parllament (e.g. Income
Tax Act) or Rules, Regulations and Bye-laws made under
various Articles of the Constitution (e.g. Fundamental
Rules, Classification, Control and Appeal Rules, Civil
Service Regulations, Delegation of Financial Powers Rules,
etc.). The Vice Chancellors who are performing the
duties of Acting Vice Chancellor in their respective
Central Universities may take note of the above
provision of CCS(CCA) Rules, 1965 and refrain from
taking any action in contravention of the said
provision."
(emphasis supplied)
The letter dated 9 October 2014 of the Ministry of Human Resource

Development in the Department of Higher Education, which is also addressed

to all the Vice Chancellors of the Universities, is as follows:-

“In continuation of this Department's letter of even

number dated 7.8.2014 on the above subject, it is clarified
that the Acting Vice Chancellor can perform the routine
nature of work of the University, which includes
appointments on temporary basis and convening the
meetings of the Committees like Finance Committee,
Executive Council and Academic Council. Decisions like
amending the Statutes, bringing new ordinances or
amending the ordinances, appointment of permanent
teaching and non teaching staff, creation of new posts
etc. should not be taken up by the acting Vice
Chancellors."
(emphasis supplied)
The first letter dated 7 August 2014 refers to the provisions of Rule

12(2) of the CCS (CCA) Rules5. It has, therefore, to be examined whether

these Rules would at all apply to the University. As noted above, the

5 'the Rules'
 8

University is governed by the provisions of the Act and the Statutes and Rule

3 of the CCS(CCA) Rules provides that the Rules would be applicable to

every Government servant including every civilian Government servant in the

Defence Services.

Government servant has been defined in Rule 2(h) to mean as follows:-

“Government servant means a person who (i) is a

member of of a Service or holds a civil post under
the Union, and includes any such person on foreign
service or whose services are temporarily placed at
the disposal of a State Government, or a local or
other authority;
(ii) is a member of a Service or holds a civil post
under a State Government and whose services are
temporarily placed at the disposal of the Central
Government;
(iii) is in the service of a local or other authority and
whose services are temporarily placed at the disposal
of the Central Government.”
The Professors of the University are neither members of a service nor

do they hold a civil post under the Union nor they are in the service of local or

other authority. CCS(CCA) Rules would, therefore, have no application to a

Central University.

Even otherwise Rule 12(2), on which reliance has been placed in the

letter dated 7 August 2014, deals with Disciplinary Authorities and is as

follows:-

“Rule 12: Disciplinary Authorities

(1) The President may impose any of the penalties
specified in Rule 11 on any Government Servant.
(2) Without prejudice to the provisions of sub-rule (1)
subject to the provisions of sub-rule (4), any of the
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penalties specified in Rule 11 may be imposed on-

(a) a member of a Central Civil Service other than the
General Central Services, by the appointing authority or the
authority specified in the scheduled in his behalf or by any
other authority specified in the schedule in this behalf or
by any other authority empowered in this behalf by a
general or special order of the President;
(b) a person appointed to a Central Civil Post included in
the General Central Services, by the authority specified in
this behalf by a genral or special order of the President or,
where no such order has been made, by the appointing
authority or the authority specified in the Schedule in this
behalf.
(3) Subject to the provisions of sub-rule (4), the power to
impose any of the penalties specified in Rule 11 may also
be exercised, in the case of a member of a Central Civil
Service, Group C (other than the Central/Secretariat
Clerical Service), or a Central Civil Service, Group D-
(a) if he is serving in a Ministry or Department of the
Government of India, by the Secretary to the Government
of India, in that Ministry or Department or
(b) if he is serving in any other office, by the head of that
office, except where the head of the office is lower in rank
than the authority competent to impose the penalty under
sub-rule(2).
(4) Notwithstanding anything contained in this Rule:-
(a) except where the penalty specified in clause (v) or
clause (vi) of Rule 11 is imposed by the Comptroller and
Auditor-General on a member of the Indian Audit and
Accounts Service, no penalty specified in clauses (v) to (ix)
of that Rule shall be imposed by any authority subordinate
to the appointing authority;
(b) where a Government Servant who is a member of a
service other than the General Central Service or who has
been substantively appointed to any civil post in the
General Central Service, is temporarily appointed to any
other service or post, the authority competent to impose on
such Government Servant any of the penalties specified in
clauses (v) to (ix) of Rule 11 shall not impose any such
penalties unless it has consulted such authority, not being
an authority subordinate to it, as would have been
competent under sub-rule (2) to impose on the Government
 10

Servant any of the said penalties had he not been appointed

to such other service or post;
(c) in respect of a probationer undergoing training in Lal
Bahadur Shastri National Academy of Administration, the
Director of the said Academy shall be the authority
competent to impose on such probationer any of the
penalties specified in clauses (i) to (iii) of Rule 11 after
observing the procedure laid down in Rule 16.
Explanation 1.- For the purpose of clause (c) 'probationer'
means a person appointed to a Central Civil Service on
probation.
Explanation 2.-Where a Government Servant belonging to
a service or holding a Central Civil Post of any class, is
promoted, whether on probation or temporarily to the
Service or Central Civil Post of the next higher class, he
shall be deemed for the purpose of this Rule to belong to
their service of, or hold the Central Civil Post of such
higher class.”
It appears that the letter dated 7 August, 2014 has placed reliance on

certain orders issued by the Government of India which provide that the Law

Ministry has advised that an officer appointed to perform the current duties of

an appointment can exercise administrative or financial powers vested in the

full-fledged incumbent of the post but he cannot exercise statutory powers. It

is in continuation of the letter dated 7 August 2014 that the subsequent

communication dated 9 October 2014 has been sent by the Ministry of Human

Resources and Development to the Vice Chancellors of all the Central

Universities that an Acting Vice-Chancellor of the University cannot make

permanent appointment. As the CCS(CCA) Rules have no application to

Central Universities, any reliance placed on Rule 12(2) of the Rules or the

Government Orders referred to will have no application.

In such circumstances, the reason assigned by the Acting Vice-

 11

Chancellor of the University in not convening meetings of the Selection

Committee for granting promotion under the Scheme is not in conformity with

the provisions of the Act and Statues of the University. The Acting Vice

Chancellor of the University could not, therefore, have been restrained from

discharging his duties under the Act and the Statutes on the basis of the

aforesaid Rules. It is the duty of the Acting Vice Chancellor of the University

to convene the meetings of the Selection Committee for granting promotion

under the Scheme and indeed the University has been granting appointments

under the Scheme even after the communications dated 7 August 2014 and 9

October 2014 as would be clear from the resolution of the Executive Council

which has been referred to in the communication dated 22 December 2014. It

is, therefore, not possible to accept the contention of Sri V.K. Singh, learned

Senior Counsel for the University.

The writ petition is, accordingly, allowed. The University shall,

therefore, proceed to convene the meetings of the Selection Committee

forthwith so that the promotions which are long overdue are granted under the

Scheme at the earliest.

Order Date :- 19.3.2015

AS/NSC
(Dilip Gupta, J)

(Vinod Kumar Misra, J)