Ashok
Kumar Das & Ors. Vs. University of Burdwan & Ors. [2010] INSC 190 (16
March 2010)
Judgment
CIVIL
APPELLATE JURISDICTION CIVIL APPEAL NO. 392 OF 2004 Ashok Kumar Das & Ors.
... Appellants Versus University of Burdwan & Ors. ... Respondents
A. K.
PATNAIK, J.
1.
This is an appeal against the judgment and order dated 08.08.2002
of the Division Bench of the High Court of Calcutta in MAT No.2604 of 2001 and
CAN No.1624 of 2001 filed by some members of the non-teaching staff of the
University of Burdwan [For short `the University'].
2.
The facts very briefly are that promotions to different grades of
non-teaching staff of the Burdwan University were 2 being done on the basis of
seniority. On 26.06.1995, the Executive Council of the University considered
the principle of promotion as enunciated in the Government Order dated
17.10.1985 and resolved that criteria of `Seniority-cum- Efficiency' as
enunciated in the aforesaid Government Order dated 17.10.1985 will be followed
for promotion to different grades of non-teaching staff of the University. The
Executive Council of the University in its meeting on 26.06.1995 also resolved
the manner in which the efficiency of a candidate for promotion will be
considered along with seniority for promotions to different grades. For the
first promotion, efficiency of the employee was to be determined on the basis
of recording in his personal file and the report received from the Controlling
Officer of the candidate; for the second promotion, 50% weightage will be given
to efficiency, out of which 25% would be allotted for work performance and 25%
would be allotted to a written test for ascertaining the subject competence of
the candidate and for the third promotion, the efficiency was to be determined
on the basis of recording in the personal file and the report of the
Controlling Officer. The 3 Resolution of the Executive Council of the
University taken in its meeting on 26.06.1995 was to be implemented with
immediate effect.
3.
Aggrieved by the Resolution of the Executive Council of the
University, some of the appellants filed the Writ Petition being C.O. No.17139
(W) of 1995 and a learned Single Judge of the High Court of Calcutta allowed
the writ petition in part and set aside the Resolution of the Executive Council
of the University taken on 26.06.1995 and directed the University to re-frame
its guidelines for promotion strictly in accordance with the Government Order
dated 17.10.1985 in the light of the observations made in the judgment and to
give promotion to the candidates on the basis of the Government Order dated
17.10.1985 after re-framing the guidelines.
4.
The University challenged the judgment of the learned Single Judge
before the Division Bench of the High Court of Calcutta and the Division Bench
held in the impugned judgment and order that under Section 21 (xiii) of the
Burdwan University Act, 1981 the Executive Council of the University was
empowered to determine, with the approval of 4 the State Government, the terms
and conditions of service of non-teaching staff of Colleges other than
Government Colleges, but no approval of the State Government had been taken to
the Resolution of the Executive Council of the University adopted in its
meeting held on 26.06.1995. By the impugned judgment and order, the Division
Bench of the High Court of Calcutta directed the University to send the
proposal in the Resolution of the Executive Council of the University adopted
on 26.06.1995 to the State Government for its approval and further directed
that in case the State Government approves the proposal, the University will
undertake the exercise of promotion of their staff. Pursuant to the impugned
judgment and order of the Division Bench, the proposal was sent to the State
Government and the State Government by its order dated 10.10.2002 has approved
the Resolution of the Executive Council of the University adopted on
26.06.1995.
5.
The contention raised before us by the learned counsel for the
appellants was that the Resolution of the Executive Council of the University
adopted on 26.06.1995 will be effective only from 10.10.2002 when the State
Government 5 approved the Resolution and will not apply to any promotions made
prior to 10.10.2002 because under Section 21 (xiii) of the Burdwan University
Act, 1981 the Executive Council of the University could determine the terms and
conditions of the service of the non-teaching staff of the Colleges other than
Government Colleges with the approval of the State Government and not
otherwise. Relying on the decisions of this Court in T. R. Kapur & Ors. v.
State of Haryana & Ors. [AIR 1987 SC 415], Prem Kumar Verma & Anr. v. Union
of India & Ors. [(1998) 5 SCC 457], Union of India v. S. S. Uppal &
Anr. [(1996) 2 SCC 168], Kulwant Kumar Sood v. State of H. P. & Anr.
[(2005) 10 SCC 670] and High Court of Delhi & Anr., Etc. v. A. K. Mahajan
& Ors. [(2009) 12 SCC 62], learned counsel for the appellants submitted
that the Resolution of the Executive Council of the University adopted on
26.06.1995 and approved by the State Government on 10.10.2002 cannot,
therefore, apply to promotions to vacancies which have occurred prior to
10.10.2002. Learned counsel for the Intervenors supported the aforesaid stand
of the appellants.
6.
Learned counsel for the respondents Nos. 1 to 3, on the other
hand, submitted that Section 21 (xiii) used the expression "approval of
the State Government" and not "prior approval of the State
Government" and it has been held by this Court in U. P. Avas Evam Vikas
Parishad & Anr. v. Friends Co-operative Housing Society Ltd. & Anr.
[(1995) Supp.(3) SCC 456] and High Court of Judicature for Rajasthan v. P. P.
Singh & Anr. [(2003) 4 SCC 239] that when an approval is required, an
action holds good and only if it is disapproved it loses its force. He further
submitted that promotions made on the basis of Resolution of the Executive
Council of the University adopted on 26.06.1995, therefore, hold good and now
that the State Government has approved the Resolution of the Executive Council
of the University adopted on 26.06.1995 by order dated 10.10.2002, the
promotions made on the basis of the Resolution dated 26.06.1995 of the
Executive Council of the University hold good and cannot be set aside by this
Court.
7.
In Black's Law Dictionary (Fifth Edition), the word "approval"
has been explained thus: "the act of confirming, 7 ratifying, assenting,
sanctioning, or consenting to some act or thing done by another." Hence,
approval to an act or decision can also be subsequent to the act or decision.
8.
In U. P. Avas Evam Vikas Parishad (supra), this Court made the
distinction between permission, prior approval and approval. Para 6 of the
judgment is quoted hereinbelow:
"6.
This Court in Life Insurance Corpn. of India v. Escorts Ltd. [(1986) 1 SCC
264], considering the distinction between "special permission" and
"general permission", previous approval" or "prior
approval" in para 63 held that: "We are conscious that the word
`prior' or `previous' may be implied if the contextual situation or the object
and design of the legislation demands it, we find no such compelling
circumstances justifying reading any such implication into Section 29(1) of the
Act."
Ordinarily,
the difference between approval and permission is that in the first case the
action holds good until it is disapproved, while in the other case it does not
become effective until permission is obtained. But permission subsequently
granted may validate the previous Act, it was stated in Lord Krishna Textiles
Mills Ltd. v. Workmen [AIR 1961 SC 860], that the Management need not obtain
the previous consent before taking any action. The requirement that the
Management must obtain approval was distinguished from the requirement that it
must obtain permission, of which mention is made in Section 33(1)."
9.
Following the decision in U. P. Avas Evam Vikas Parishad (supra),
this Court again held in High Court of Judicature for Rajasthan v. P. P. Singh
& Ors. (supra) in para 40:
"When
an approval is required, an action holds good and only if it is disapproved it
loses its force. Only when a permission is required, the decision does not
become effective till permission is obtained.
(See U.P.
Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd.)."
10.
Section 21 (xiii) of the Burdwan University Act, 1981 is quoted
herein below:- "21. Subject to the provisions of this Act, the Executive
Council shall exercise the following powers and perform the following
functions:
(i) to
(xii) ........................
(xiii) to
determine, with the approval of the State Government, the terms and conditions
of service of Librarians and non-teaching staff."
The words
used in Section 21 (xiii) are not "with the permission of the State
Government" nor "with the approval of the State Government", but
"with the approval of the State Government". If the words used were
"with the permission of 9 the State Government", then without the
permission of the State Government the Executive Council of the University
could not determine the terms and conditions of service of non-teaching staff.
Similarly, if the words used were "with the prior approval of the State
Government", the Executive Council of the University could not determine
the terms and conditions of service of the non-teaching staff without first
obtaining the approval of the State Government. But since the words used are
"with the approval of the State Government", the Executive Council of
the University could determine the terms and conditions of service of the
non-teaching staff and obtain the approval of the State Government subsequently
and in case the State Government did not grant approval subsequently, any
action taken on the basis of the decision of the Executive Council of the
University would be invalid and not otherwise.
11.
We, therefore, hold that promotions to different grades of
non-teaching staff made by the University on the basis of the principles laid
down in the Resolution of the Executive Council of the University adopted on
26.06.1995 are valid as 10 the Resolution has been approved by the State
Government on 10.10.2002. This appeal is without any merit and is dismissed
with no order as to costs.
..........................J. (Markandey Katju)
..........................J. (A. K. Patnaik)
New Delhi,
March 16, 2010.
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