THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION Nos. 897 of 2011 and 3217 of 2011 COMMON ORDER : 1. Writ Petition No.897 of 2011 has been filed seeking to issue a writ of mandamus declaring the action of the respondents in not allowing the petitioner to continue as Assistant Librarian in the first respondent university till the age of superannuation viz. 62 years, as illegal and arbitrary and consequently set aside the order No.EFL- U/Admin.F.870/2010/879, dated 31.3.2010 relieving the petitioner from duty as well as order OO No.EFL- U/Admin.F.870/2010/73, dated 05.04.2010 withdrawing the promotion of the petitioner, issued by the first respondent. 2. The averments, in brief, stated in the affidavit filed in support of the Writ Petition may be stated as follows: The petitioner joined as Upper Division Clerk in Library of first respondent university on 15.6.1979, and he was given higher scale benefit in the year 19.8.1988 and the post was upgraded as Semi Professional Assistant on 31.3.2006. He was discharging his duties to the satisfaction of his superiors. He is fully eligible for promotion to the post of Assistant Librarian from the year 2000 onwards and also having M.Phil. (Lib.Sci.) qualification. Basing on a letter addressed by the Ministry of Human Resources, the University Grants Commission issued proceedings No.F.5.5/2004 (PS), dated 28.9.2006 whereunder the age of superannuation of post of Assistant Librarian would henceforth be 62 years. Vide office order No.EFL-U/Admin.F.870/2010/878, dated 31.3.2010, the petitioner was temporarily appointed to officiate as Assistant Librarian. As such, age of superannuation of the petitioner is 62 years. But, the respondents, without following the Rules, issued the impugned proceedings dated 31.3.2010 relieving the petitioner from duties on the afternoon of 31.3.2010 i.e. after completion of 60 years. As per Rules, 50% of the vacancies of the post of Assistant Librarian should be given to the Professional Assistant Post. The petitioner was promoted to officiate as Assistant Librarian on 31.3.2010 and on the same day, he was relieved from duties on superannuation. Assailing the same, the petitioner filed Writ Petition No.7446 of 2010 on 31.3.2010 and the same was admitted by this Court. After filing of Writ Petition, the first respondent had withdrawn promotion of the petitioner given on 31.3.2010 vide the impugned order OO No.EFL-U/Admin.F.870/2010/73, dated 05.04.2010. The petitioner has to be continued as Assistant Librarian till completion of 62 years. Hence, the Writ Petition. 3. Writ Petition No.3217 of 2011 is filed challenging the Office Memorandum No.EFL-U/SC-ST Cell/2011/2474, dated 02.02.2011 issued by the first respondent whereunder the petitioner was directed to vacate and hand over quarter No.166, EFL University campus, Tarnaka, Hyderabad pursuant to his retirement from service. 4. The first respondent filed counter affidavit denying the averments in the Writ Petition and stating has follows. The first respondent university has come into existence as ‘The English and Foreign Languages University’ on 03.08.2007, and prior to this, it was a Deemed University under the name and style of ‘Central Institute of English and Foreign Languages’. As per the Rules approved in the Board Meeting held on 14.12.1988, the post of Assistant Librarian should be filled by direct recruitment only and there is no element of promotional channel for this post. The petitioner belongs to M.Phil. 2008 batch. As per his personal records, the petitioner did not give any letter for permission to pursue M.Phil. degree during 2008, and in pursuance of his request dated 20.3.2009, the university granted permission to him on 24.3.2009 to pursue M.Phil. course. The temporary officiating promotion to the post of Assistant Librarian given to the petitioner has been withdrawn vide impugned order dated 05.04.2010 and the petitioner was made to retire in his substantive post of Professional Assistant, and therefore, the petitioner cannot be continued till 62 years. All the rules stated by the petitioner regarding superannuation age of the petitioner are applicable to the employees holding the permanent post of Assistant Librarian. There is no provision or rule in the Government of India or in the University Rules that an employee can be awarded temporary officiating promotion on the day of retirement of the employee. The administration of first respondent inadvertently issued promotion dated 31.3.2010 to the petitioner temporarily appointing him to officiate as Assistant Librarian on date of his superannuation, but, after seeking legal opinion, as it does not cover under any Rule of the University, it was withdrawn by order dated 05.04.2010. The first respondent university appointed the petitioner as temporary officiating Assistant Librarian on the last day of his superannuation just to satisfy him for the years of service rendered in the University, without seeing the Rule position, however, on the advice of the Standing Counsel, it was decided to withdraw the order and he was made to retire from service as Professional Assistant and relieved from the same position from 31.3.2010, which is as per the decision taken by the Executive Council. The petitioner filed Writ Petition No.7446 of 2010 on 31.3.2010. He was supposed to be on duty on the last day of his retirement for fulfilling the required formalities. The petitioner may have many personal problems, but the Rules will not permit him to continue stay in Government Quarters for a long period after his retirement. The University gave him ample time to vacate the quarter, and since he did not vacate the same even then, the impugned proceedings dated 02.02.2011 in Writ Petition No.3217 of 2011 was issued to vacate and hand over the possession of the quarter to the university. Hence, it is prayed to dismiss the Writ Petitions. 5. At the request of both the counsel, both the Writ Petitions are taken up for disposal together. 6. Learned counsel for the petitioner contends that in view of the UGC approved guidelines, the age of superannuation for the post of Assistant Librarians/College Librarians and Assistant Directors of Physical Education/College Directors of Physical Education is 62 years; that withdrawing the promotion of the petitioner to officiate as Assistant Librarian, vide impugned order dated 05.04.2010, on the ground that it should be filled through direct recruitment is not tenable; that, the resolution passed by the first respondent university would clearly go to show that the proposed modification of Rules with regard to elimination of direct recruitment has been accepted by reconsideration of the earlier recruitment rules; that the first respondent university, by its resolution, permitted the petitioner to continue; that, by virtue of Section 3 of the UGC Act, which was approved by the Government of India, the recruitment rules for non-teaching staff of the institute was upgraded whereunder 50% of posts of Assistant Librarian are to be filled up by promotion and 50% by direct recruitment; that the petitioner is fully qualified to hold the post of Assistant Librarian; that, as per the office memo dated 02.02.2011, on promotion, a person can officiate the Assistant Librarian post, and hence, he prays to direct the respondents to give all the monetary benefits to the petitioner from the date of his illegal retirement till he completes 62 years. 7. On the other hand, the learned counsel for the respondents contends that as per recruitment rules of 1988, there is no promotion channel available from feeder category to the post of Assistant Librarian and it must be filled up only through direct recruitment basing on selection process; that the resolution dated 29.9.2009 for enhancing the age of superannuation for the post of Assistant Librarian by the Executive Council can be said to be illegal due to lack of quorum; that, as there is no promotion channel, the question of giving promotion to the petitioner as Assistant Librarian, or to officiate the said post, does not arise; that the first respondent university is not disputing about the age of superannuation for the post of Assistant Librarian is 62 years; but, a distinction has to be drawn between the posts of Assistant Librarian and Professional Assistant, as the age of superannuation for the post of Professional Assistant is 60 years. He further contended that, the petitioner is not entitled to continue his stay in the government quarters even after his retirement and hence the impugned order in Writ Petition No.3217 of 2011 was issued directing him to vacate and hand over the quarter to the university, and hence, he prayed to dismiss the Writ Petitions. 8. By virtue of order No.EFL-U/Admn./F.870/2010/878, dated 31.3.2010, the first respondent university temporarily appointed the petitioner to officiate as Assistant Librarian in the Pay Band of Rs.15,600-39,100 + GP Rs.6,000/- for day i.e. 31.3.2010, as he was superannuating on the same day. Thereafter, by order No.EFL-U/Admn./F.870/2010/73, dated 05.04.2010, the University decided to withdraw the above proceedings as it was found that there were no rules which enable the university to give temporary officiating promotion for giving financial benefits on the last day of retirement. By another order No.EFL-U/Admn./F.870/2010/879, dated 31.3.2010, the petitioner was relieved of his duties at the University, which is impugned in the first Writ Petition. The impugned order dated 31.03.2010 was issued on the approval of the Vice Chancellor of the University. 9. Learned counsel for the petitioner placed strong reliance on English and Foreign Languages Act, 2006 (Act 7/2007) which came into force from 11.1.2007. Under Section 29 (2) of the said Act, the Executive Council may, from time to time, make new or additional Statutes or may amend or repeal the Statutes referred to in sub-section (1). The Executive Council of the University has got every power to make new or additional statutes. Similarly, under Section 31 of the Act, the authorities of the University may make Regulations, consistent with this Act, the Statutes and the Ordinances for the conduct of their own business and that of the Committees, if any, appointed by them and not provided for by this Act, the Statutes or the Ordinances, in the manner prescribed by the Statutes. A conjoint reading of both these sections would clearly go to show that the Executive Council of the University has got power to make new or addition of Statutes. Similarly, service conditions of the Librarians may be prescribed in the Statute. 10. There cannot be any dispute that for the purpose of taking any decision in the Executive Council, there should be a quorum of seven members. In the meeting of the Executive Committee of the University held on 29.09.2009, the members of the Executive Committee have considered the recommendations of the Committee and approved the recruitment rules attached along with the minutes. As per the said recruitment rules, in the category of Assistant Librarian, 50% of the posts should be filled up by direct recruitment and 50% by promotion. The learned counsel for the respondents vehemently contended that since there was no quorum of seven members in the said Executive Council meeting, the said Rules cannot be given effect to. On the other hand, he placed strong reliance on the recruitment rules of 1988 which prescribe for filling up of the post of Assistant Librarian only by way of direct recruitment. This can be changed or altered only by the competent body, which is the Executive Council with requisite quorum. 11. As per Rule 11 of Schedule appended to the University Act, 2006, seven members of the Executive Council shall form a quorum for a valid meeting of Executive Council. Unless the required number of members present in the meeting, it cannot be said that any resolution passed is legally valid. Therefore, the case of the petitioner cannot be taken into consideration to the effect that 50% of the posts of Assistant Librarian can be filled up by direct recruitment and the remaining 50% shall be by way of promotion. So long as the recruitment rules of 1988 with regard to manner of filling up of the post Assistant Librarian are not amended or varied or modified by the Executive Council consisting of required quorum, the promotion to officiate as Assistant Librarian can be said to be illegal and not in accordance with Rules. In view of the fact that quorum is lacking, amendment to the Rules on 29.09.2009 is not a valid one and cannot be made applicable to the case of the petitioner that he is entitled for promotion to the post of Assistant Librarian in promotion quota. When there is no source of rule or law for promotion from the feeder category, question of giving promotion to petitioner does not arise. When the recruitment rules of 1988 contemplate that all the posts of the Assistant Librarian are to be filled up by direct recruitment, appointment of the petitioner to officiate the post of Assistant Librarian is contrary to the Rules governing the service conditions of the post of the Assistant Librarian. 12. Learned counsel for the petitioner contended that by virtue of the resolution of the Executive Council, the recruitment rules framed by the University were sought to be modified by eliminating direct recruitment to enable the staff to avail promotion. Admittedly, it was approved on 20.05.2010 and these Rules have come into effect from that date. But, promotion of the petitioner was effected on 31.03.2010 i.e. before approval of the Rules, and he was relieved from his duties on the same day. Therefore, the amended Rules are not applicable to the case of the petitioner. 13. Learned counsel for the petitioner contended that the Executive Council in its meeting held on 20.05.2010 impliedly approved the resolution of the Executive Council Meeting held on 29.09.2009, whereunder it was resolved to fill up the posts of Assistant Librarian 50% by promotion and 50% by direct recruitment. Because of lack of quorum, the resolution of the Executive Council on 29.09.2009 is not a valid resolution in law. Therefore, this resolution cannot be made applicable to the case of the petitioner who was already relieved from duties on 31.3.2010 on superannuation. As per the Rules in vogue as on 31.3.2010, when the post of Assistant Librarian is filled only by direct recruitment, the question of giving promotion to the petitioner to the said post does not arise. 14. The learned counsel for the petitioner contended that Advertisement No.EFL-U/Admn/F.25/II/2009, dated 18.05.2009 issued by the first respondent university with regard to filling up of one post of Assistant Librarian is in consonance with the resolution of the Emergency Executive Council Meeting held on 29.09.2009, and another post of Assistant Librarian is not notified for the reason of giving promotion from feeder category, and therefore, it cannot be said that the post of Assistant Librarian can only be filled by direct recruitment. As per recruitment rules of 1988, which are in vogue in the respondent university, there is only one source of recruitment for the post of Assistant Librarian i.e. Direct recruitment. Even this notification cannot validate the action taken by the Registrar in advertising one post by direct recruitment, in view of the fact that the Executive Council meeting held on 29.9.2009 has no power to resolve any resolution any resolution in view of lack of quorum and the resolution has no legal sanctity. Therefore, when the promotion effected on 31.3.2010 appointing the petitioner to officiate as Assistant Librarian is not in accordance with the Rules in vogue, the question of continuing the petitioner in service till completion of 62 years does not arise. The Writ Petition No.897 of 2011 is devoid of merit. 15. When the petitioner is not at all entitled to continue in service till completion of 62 years, the question of permitting him to continue in the official quarter does not arise. He has to vacate the same. Accordingly, Writ Petition No.3217 of 2011 is devoid of merit. 16. Accordingly, the Writ Petitions are dismissed. No costs. --------------------- (K.C.Bhanu, J.) 12.07.2011 DRK THE HON’BLE SRI JUSTICE K.C.BHANU COMMON ORDER IN WRIT PETITION Nos. 897 of 2011 and 3217 of 2011 12.07.2011