* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C.) No. 5075/2007 Judgment Reserved on: 11.02.2010 % Judgment Delivered on: 16.02.2010 # PROF. DEVENDRA MISHRA ..... Petitioner ! Through: Mr. Ashwini Mata, Senior Advocate with Mr. Manu Shahalia and Ms. Manmeet Sethi, Advocates. Versus $ UNIVERSITY OF DELHI AND OTHERS .....Respondents ^ Through: Mr. Amit Bansal, Advocate CORAM: HON'BLE MR. JUSTICE S.N. AGGARWAL 1. Whether reporters of Local paper may be allowed to see the judgment? YES 2. To be referred to the reporter or not?YES 3. Whether the judgment should be reported in the Digest?YES S.N.AGGARWAL, J The petitioner was a Professor in the Department of Sanskrit, Department of Delhi University and he had to retire on attaining the age of superannuation at the age of 62 years on 31.01.2007. However, before attaining the age of superannuation, he had applied for his re-employment in the University as per its Rules and Regulations applicable at that time on 30.10.2006. The application for re-employment was made by him in the prescribed format accompanied by necessary attachments, containing details of his publications and the other details of his accomplishments and achievements in his career along with recommendations from the W.P.(C.) No. 5075/2007 Page 1 of 29 Head of the Department for his re-employment. The University vide its communication dated 12.02.2007 addressed to the Head of Department of Sanskrit with a copy thereof to the petitioner, allowed him to continue in service till the decision of the Executive Council of the University regarding his re-employment. The Ministry of Human Resource Development, Department of Higher Education, Government of India, issued a circular on 23.03.2007 which was addressed to the Secretary, University Grants Commission and enhanced the age of superannuation of the teachers of the University and the Colleges from 62 years to 65 years. 2. The above circular of Ministry of Human Resource Development was communicated by the University Grants Commission to all the State Universities including the Delhi University (Respondent No. 1 herein) in the first week of April, 2007. The respondent no. 1 University vide its notification bearing No./Estab.(T)/2007/ dated 12.04.2007 notified to all the Departments and the Colleges affiliated to the said University that the age of superannuation of all the persons holding teaching positions on regular employment against sanctioned posts as on 15.03.2007 in any of the Centrally Funded Higher and Technical Education shall be increased from the present 62 years to 65 years. 3. The respondent no. 1 University vide its letter dated 20.06.2007 informed the Head of Department of Sanskrit that the Executive Council has not recommended the case of the petitioner for his re-employment. The above decision of the University was W.P.(C.) No. 5075/2007 Page 2 of 29 communicated to the petitioner by the Head of the Sanskrit Department vide letter dated 02.07.2007 received by him on 07.07.2007. Immediately on receipt of this communication by the petitioner, he filed the present writ petition on 13.07.2007 with the following prayers :- i) Issue an appropriate writ, direction or order in the nature of certio rari quashing the decision contained in letter no. Estab.(T)/V/Skt/17625 dated 20.06.2007 issued by the respondent no. 2. ii) Issue an appropriate writ, direction or order in the nature of mandamus commanding the respondents to re-employ the petitioner in the Department of Sanskrit till the attainment of age of 65 years as per the Circular dated 23.03.2007, Annexure-3; iii) Issue any other appropriate writ, direction or order as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. 4. Dr.A.K. Dubey, Registrar of respondent no. 1 University, has filed his affidavit in response to notice of this writ petition. He has taken a stand that the case of the petitioner for his re-employment was considered and rejected by the Advisory Committee on re- employment in its meeting held on 14.03.2007 in terms of the order of the Hon’ble Supreme Court dated 13.10.2003 and the relevant resolutions of the Executive Council particularly EC Resolution No. 22 dated 11.04.1981/159 dated 22.01.1991 and in consonance with the requirements of Ordinance XII Clause 3-A(2). It is further stated in the counter affidavit of the respondents that the cases of the teachers who were recommended by the Advisory Committee in its meeting held on 14.03.2007, were placed before the Executive Council on 08.06.2007 and since the petitioner’s case was not W.P.(C.) No. 5075/2007 Page 3 of 29 recommended by the Advisory Committee in its meeting held on 14.03.2007, it was not placed before the Executive Council on 08.06.2007. 5. According to the respondents, the petitioner was not given re- employment as the Advisory Committee did not recommend his case for emplyment. Further case of the respondents is that the petitioner cannot claim a vested right for his re-employment only because he was allowed to continue with the teaching after the date of his retirement on 31.01.2007 vide letter dated 12.02.2007. It is stated that the petitioner was allowed to continue with the teaching after the date of his retirement because at that time his case for his re-employment was pending consideration of the Vice- Chancellor and the Executive Council. According to the respondents, the continuance of the petitioner beyond 31.01.2007 was not a regular employment and was subject to certain conditions which were communicated to him prior to the decision of the Government of India for enhancing the age of retirement from 62 years to 65 years. The respondents have stated that the case of the petitioner was not placed before the Executive Council as the petitioner’s case was not recommended for re-employment by the Advisory Committee. The respondents have prayed for the dismissal of this writ petition. 6. The petitioner has filed his rejoinder to the counter affidavit of the respondents. In his rejoinder, he has reiterated his claim for continuance in the service of the respondents beyond 31.01.2007 W.P.(C.) No. 5075/2007 Page 4 of 29 on the basis of Circular of Ministry of Human Resource Development, Government of India dated 23.03.2007 adopted by respondent no. 1 University vide Notification dated 12.04.2007 (page 139). The petitioner has also stated in his rejoinder that even after his alleged disengagement communicated to him vide letter of Head of Sanskrit Department dated 02.07.2007, he was continuing with the respondents on the basis of letter of respondent no. 3 dated 12.07.2007 asking him to continue with the teaching work. The petitioner has also taken a plea that his case for re- employment was not considered by the respondents in terms of circular of the Government of India dated 23.03.2007 adopted by respondent no. 1 University vide notification dated 12.04.2007. He has also pleaded bias against the Advisory Committee which allegedly considered his case for re-employment in its meeting held on 14.03.2007. He has stated that Mr. D. Prahaladachari, an expert on the Advisory Committee had personal grudge and bias against him because the petitioner was earlier appointed as the UGC nominee on the Executive Committee of the Tirupati Sanskrit University, Tirupati for a term of three years where the aforesaid expert was the Vice-Chancellor. The duty of the petitioner was to act as a watch-dog of the functioning of the University. Thereafter, the petitioner was appointed as the Convenor/Chairman of the Financial Grant Committee by the UGC for Tirupati Sanskrit University, Tirupati and his duties there were to scrutinize the expenditure of the Tirupati Sanskrit University and the petitioner W.P.(C.) No. 5075/2007 Page 5 of 29 could not accept all the requests of the then Vice-Chanceleors Mr. D. Prahaladachari and on many occasions were to differ with him and disapprove his proposals resulting in differences between them. According to the petitioner, though he was only attaching the point of view propounded by the said Mr. D.Prahaladachari, yet he took it as a personal attack on him and was harbouring grudge against him. The petitioner has stated that the appointment of such a person as an expert member on the Advisory Committee to decide about the re-employment of the petitioner had caused a serious prejudice to him inasmuch as according to him the subject expert plays a key role in the Advisory Committee as the other members do not know the subject and therefore they go by the decision of the subject expert. The petitioner has also stated that there were certain areas in the past where the interests of the expert were in direct clash with his interest. He has submitted that as per the established norms, the intimation of the previous acquaintances ought to have been given by the expert to the respondent no. 1 University to procure a fair selection but the same according to him has not taken place in the present case. The petitioner has also narrated the facts to show that he is much more qualified than the expert member and according to him, Mr. D. Prahaladachari appointed as an expert on the Advisory Committee, was in no position to assess the merits or demerits of the petitioner for his re-employment. In any case, the petitioner has stated that since his case for re-employment has not been considered by the W.P.(C.) No. 5075/2007 Page 6 of 29 respondents in the light of the Circular of the Government of India dated 23.03.2007, adopted by the respondent no. 1 university vide notification dated 12.04.2007, he is entitled for deemed continuation in the service of the respondents. 7. After filing of rejoinder by the petitioner, both the parties have filed more than one additional affidavit each, which all will be considered hereinafter at appropriate places. 8. I have heard the arguments of learned counsel for both the parties and have also gone through the written arguments filed by them. I have also carefully gone through the entire material placed on record. 9. The first and the foremost question that arises from the pleadings of the parties for consideration of the Court is whether the petitioner is deemed to have continued in the service of the respondents in view of the Circular of the Ministry of Human Resource Development, Government of India dated 23.03.2007 and adopted by the respondent no. 1 university vide notification dated 12.04.2007. In case, the decision on the said question goes against the petitioner, then another question that would arise for consideration will be whether the case of the petitioner for his re- employment has been considered by the respondents in accordance with the Rules applicable for such re-employment and, if not, to what relief the petitioner is entitled in this case. 10. Mr. Ashwini Mata, learned senior counsel appearing on behalf of the petitioner, had argued that in view of the Circular of Ministry W.P.(C.) No. 5075/2007 Page 7 of 29 of Human Resource Development dated 23.03.2007 adopted by the respondent no. 1 University vide its resolution dated 12.04.2007, the petitioner was entitled to continue in the service of the respondents till the age of 65 years because on the cut-off date of 15.03.2007 mentioned in the said Circular, the petitioner was continuing in the service of the respondents and had not been relieved from the Department on that date. The contention of Mr. Mata was that the case of the petitioner falls under Clause 2(i) and according to him, even if the case of the petitioner for his re- employment was to be considered in terms of clause 2(ii) of the aforementioned circular, the respondents were under a legal obligation to have considered the case of the petitioner for his re- employment on the basis of UGC guidelines formulated on 23.11.2007, applicable to those who had retired prior to 15.03.2007 but had not attained the age of 65 years. It was submitted by the learned senior counsel appearing on behalf of the petitioner that even in the absence of the Circular of Ministry of Human Resource Development dated 23.03.2007, the petitioner is still entitled for the relief claimed by him in the present petition because according to him, the case of the petitioner for his re-employment, even as per own admission of the respondents, was not considered either by the Vice-Chancellor or by the Executive Council who alone were the competent authorities under the University Statute and Ordinance to take a decision regarding re-employment of a University teacher. Mr. Mata had also contended that even if the W.P.(C.) No. 5075/2007 Page 8 of 29 Advisory Committee is deemed to be the competent authority to decide on the issue of re-employment of the petitioner, still according to him, the decision taken by the Advisory Committee is liable to be nullified by the Court because the Expert Member on the Advisory Committee was totally biased against the petitioner and his presence in the Advisory Committee had influenced the other members of the Committee and for that reason, the impugned communication dated 20.06.2007 addressed by respondent no. 2 to respondent no. 3 is liable to be set aside by this Court. It was further contended by the learned senior counsel appearing on behalf of the petitioner that despite communication of dis-engagement from service served upon the petitioner vide covering letter of respondent no. 3 dated 02.07.2007, the petitioner is continuing with teaching work with the respondents till date as he was asked to do that vide letter of respondent no. 3 dated 12.07.2007. It was submitted by Mr. Mata, learned senior counsel appearing on behalf of the petitioner, that the petitioner was assigned more teaching work and more Ph.D. students as compared to the only other Professor in the Department, namely, Professor Dipti Tripathi/Professor M.M. Aggarwal. Mr. Mata has placed reliance on the amendment to the Delhi University Calendar Ordinance VI-B relating to Doctor of Philosophy (Ph.D.) as approved by the Academic Council at its meeting held on 24.07.2008 and later ratified by the Executive Council on 29.07.2008 according to which there can be only 8 Ph.D. students under supervision of a W.P.(C.) No. 5075/2007 Page 9 of 29 Professor at any given point of time but the petitioner had 15 Ph.D. students assigned to him out of whom 4, namely, Mr. Dhananjay Mani Tripathi, Ms. Shivani Dubey, Ms. Preeti Sharma and Mr.Uma Shankar, have already been awarded their Ph.D. Degrees in 2008- 09 under the supervision of the petitioner and at present, he has 11 Ph.D. students under his supervision. It was submitted that in case the petitioner had retired from service, then he could not have continued to get Ph.D. students under his supervision from the Board of Research Studies of the respondents and this, according to him, shows that the petitioner continued to work with the respondents in the same manner, as being done by him in the past. 11. Per contra, Mr. Amit Bansal, learned counsel appearing on behalf of the respondents, has referred to and relied upon a Division Bench judgment of this Court in Dr. V.K.Aggarwal Versus University of Delhi & Ors.{LPA No. 1973/2005 Decided on 29.11.2005} and on the strength of this judgment, he had argued that the decision taken by the respondents not to grant re- employment should not be interfered with by this Court as according to him, the decision of the respondents in this regard was final and cannot be challenged. He has also placed reliance on another Single Bench judgment of this Court in Dr.Madhu Rathour Versus Vice-Chancellor, DU reported as 113 (2004) DLT 571. In the said case, this Court had examined the procedure followed by the respondents for re-employment of teachers and upon such examination, it was held that the Court should not sit in judgment W.P.(C.) No. 5075/2007 Page 10 of 29 over the recommendations of the Selection Committee and the administrative decisions on re-employment taken by the University unless the process is found to be vitiated by mala fides or arbitrariness. 12 Mr. Bansal, learned counsel appearing on behalf of the respondents had argued that the case of the petitioner for his re- employment was considered by the Advisory Committee in accordance with the procedure applicable prior to issuance of circular by the Ministry of Human Resource Development dated 23.03.2007 and, therefore, according to him, no fault can be found with the said decision. He had submitted that the meeting of the Advisory Committee on re-employment, had taken place on 14.03.2007 whereas the Circular enhancing the age from 62 years to 65 years was issued thereafter on 23.03.2007. Mr. Bansal had contended that the petitioner, by no means, can be deemed to be in the regular employment of the respondents after he had retired on reaching the age of superannuation of 62 years on 31.01.2007 as, according to him, his continuance with the respondents vide letter dated 12.02.2007 was subject to the decision of the competent authority on the issue of his re-employment. Mr. Bansal had also submitted that the allegation of bias made by the petitioner against the expert cannot be looked into by the Court because the said plea was taken by him, for the first time, in the rejoinder and not in the main petition. 13 According to Mr. Bansal, the case of the petitioner for his re- W.P.(C.) No. 5075/2007 Page 11 of 29 employment is covered by Clause 2(ii) and not Clause 2(i) of the Circular of Ministry of Human Resource Development dated 23.03.2007. It was submitted by him that since the case of the petitioner for his re-employment was rejected by the Advisory Committee, his case was not required to be put for any further consideration either before the Vice-Chancellor or before the Executive Council. It was further submitted by the learned counsel appearing on behalf of the respondents that since the case of the petitioner for his re-employment has been rejected by the respondents, the petitioner cannot claim re-appointment as a matter of right. Further argument of Mr. Bansal was that after the date of retirement on 31.01.2007, the petitioner was employed only as a guest faculty and not as a regular teacher and he had placed reliance on the list of co-operative teachers annexed as Attachment-5 to his written submissions dated 21.01.2010. His contention was that the appointment of the petitioner as guest lecturer does not entitle him to benefit of deemed re-employment and according to him, the Court at best can direct payment admissible to the guest lecturers under the Rules. 14 I have given my anxious consideration to the above rival arguments advanced by the learned counsel for both the parties in the light of material available on record. To appreciate their rival arguments, it will be necessary to refer to some of the important documents, which both sides have admitted either in their pleadings or in the course of their arguments. W.P.(C.) No. 5075/2007 Page 12 of 29 15 Admittedly, the retirement age of University teachers was 62 years prior to issuance of Circular dated 23.03.2007 by the Ministry of Human Resource Development by which the age of superannuation of University teachers was enhanced from 62 years to 65 years. Clause 2 of the said Circular is relevant and is extracted below :- “Clause 2 : (i) The age of superannuation of all persons who were holding teaching positions on regular employment against sanctioned posts as on 15.03.2007 in any of the centrally funded higher and technical educations under this Ministry shall be increased from present 62 years to 65 years. (ii) Persons holding such regular teaching positions who have superannuated prior to 15.03.2007 on attaining the age of 62 years but have not attained the age of 65 years may be re-employed against vacant sanctioned teaching positions till they attain the age of 65 years, in accordance with the guidelines framed by the University Grants Commission. (iii)All persons holding teaching positions against sanctioned posts may also be considered for re-employment beyond 65 years and up to the age of 70 years, against sanctioned vacant posts, if such posts are not filled up by regular candidates. However, such re-employments beyond the age of 65 years shall be done only after screening at the age of 65 years, under the extant guidelines of the University Grants Commission. 16 The above policy decision of Government of India for enhancement of retirement age of University teachers was adopted by respondent no. 1 University vide its notification dated 12.04.2007, which is extracted below :- “Age of superannuation of all persons who were holding teaching positions on regular employment against sanctioned posts as on 15.03.2007 in any of the centrally funded higher and technical education institution shall be increased from the present 62 years to 65 years.” W.P.(C.) No. 5075/2007 Page 13 of 29 17 In the first instance, this Court would like to examine the case of the petitioner for his re-employment on the assumption that Clause 2(ii) of the Circular dated 23.03.2007 was to apply to his case, as argued on behalf of the respondents. 18 A perusal of Clause 2(ii) of Circular dated 23.03.2007 extracted above would show that all those University teachers who had retired prior to 15.03.2007 on attaining the age of 62 years were entitled for re-employment till the age of 65 years in accordance with the University Grants Commission’s guidelines and the only condition was that their re-employment was to be against vacant sanctioned teaching positions. Two questions arise here for consideration, first is whether there were vacant sanctioned teaching positions against which petitioner was seeking his re- employment and the second question is what guidelines of University Grants Commission were to govern the procedure of re- employment. 19 With regard to the first question regarding the number of vacant sanctioned teaching positions on the date the petitioner sought his re-employment, it will be relevant to refer to Ground ‘M’ at page 12 of the petition, which deals with the vacancy position pleaded by the petitioner. The same is extracted below :- “Because in the Department of Sanskrit there are 18 sanctioned posts and at the moment only 5 posts are filled whereas the remaining 13 posts are lying vacant. Furthermore, out of the aforesaid 18 posts, 3 posts are for Professors. Out of the three posts of Professor only one post is filled whereas the remaining 2 posts (including the one that of the petitioner) is lying vacant. It is submitted that the respondents by not filling up the posts in Department W.P.(C.) No. 5075/2007 Page 14 of 29 of Sanskrit have virtually decided to close down the said Department.” 20 The respondents have not denied the above vacancy position either in their counter affidavit or in any of their additional affidavits or the written submissions filed by them. Therefore, it stands admitted by them that there were and are still two vacancies of Professors in the Department of Sanskrit which have remained unfilled till date. Thus, it cannot be said that there was no vacant sanctioned teaching position in the Department of Sanskrit against which the petitioner was to be considered for his re-employment. Now, coming to the second question regarding the guidelines of U.G.C. applicable for re-employment, it may be noted that this Court vide its initial order of 16.07.2007 and also by a subsequent order of 14.08.2008 had directed the respondents to place the guidelines of the UGC referred to in the Circular of Ministry of Human Resource Development dated 23.03.2007, on record but despite these directions, the respondents have failed to place the guidelines of UGC applicable for re-employment on record till date. However, the model guidelines framed by the UGC on 23.11.2007 with regard to re-employment have been placed on record by the petitioner as Annexure ‘AA-1’ to his additional affidavit filed on 22.07.2008 (pages 143 to 149 of the Paper Book). A perusal of these guidelines reveals that the said model guidelines were framed by the UGC pursuant to the Circular of Ministry of Human Resource Development dated 23.03.2007 and were circulated to all W.P.(C.) No. 5075/2007 Page 15 of 29 the Universities and the Colleges. Clauses 4, 5, 7 and 8 of these guidelines are relevant and the same are extracted below :- “4. Tenure