# Dr. Somu Singh & Ors v. Union of India & Ors

- **Citation:** (2020) 9 ILRA 82
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-30
- **Case number:** Writ A No. 15599 of 2019
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-somu-singh-ors-v-union-of-india-ors-46081
- **Pages:** 12

## Headnote

A.S.G.I., Sri Krishna Raj Singh Jadaun, Sri
Vikram D. Chauhan, Sri Vinay Kumar Singh,
Sri V.K. Upadhyay

A.Education/ServiceLawDiscrimination/arbitrariness-
National
council of Teacher Education(Recognition
Norms & Procedure)Regulations, 2009:
Regulation
5;
Central
Civil
Services
(Redeployment of Surplus Staff)Rules,
1990: Rule 4; National Council for Teacher
Education Act, 1993: Section 17-The
University being instrumentality of the
state should act as a model employer and
should not treat its employees unequally,
arbitrarily or to put them in a position
which would seriously prejudice and
jeopardize the future of its employees.
(Para 38)

Advertisement No. 01/2009-10 pursuant to
which petitioners have been appointed as
Lecturers in B.Ed. Course, shows that the posts
were advertised for RGSC (Rajiv Gandhi South
Campus). Whereas, facts clearly show that B.Ed.
course at RGSC was being run without the
approval of the NCTE (National Council for
Teacher
Education).
Under
Secretary
(Inspection), NCTE vide letter dated 26.04.2017
approved to run B.Ed. course at the faculty of
education at the main campus of the University
with intake of 280 students, therefore, it could
not be justified as to how the posts have been
sanctioned for the faculty of education at RGSC
to run B.Ed. course, for which no permission
was granted by the NCTE. Therefore, Court
derived the conclusion that the petitioners were
appointed against the posts sanctioned at
Faculty
of
Education
at
the
University,
Kamachha Varanasi (main campus of the
University). (Para 34)

The action of university is discriminatory
and arbitrary in asking the petitioner to report
at RGSC. Once the University has allowed the
staff of B.P.Ed. (Bachelor of Physical Education)
to discharge their duties at main campus after
the closure of the B.P.Ed. Course at the South
Campus, the petitioners who are similarly placed
are entitled to discharge their duties at the Main
Campus of the University. (Para 36)

B. It is no doubt true that University has
prerogative
to
take
work
from
the
petitioners as and when it is required, but
this prerogative is subject to certain
limitations and restrictions that it should
be exercised in consonance with the
principle of right to equality and fairness.
(Para 37)

The University has not specified the nature of
work which the University would ask the
petitioners
to
discharge
at
RGSC.
The
9 All. Dr. Somu Singh & Ors. Vs. Union of India & Ors.
83
petitioners have been appointed to impart
teaching classes in the faculty of education in
the stream in which they are specialized.
Therefore, it would not be fair and appropriate
on the part of the University to compel the
petitioners to discharge any other duty or teach
a subject in which they are not specialized. It
would seriously prejudice and jeopardize their
chances to claim several benefits available to
them under the Career Advancement Scheme.
(Para 38, 39, 42)

C. Applicability of Rule 4 of Central Civil
Services (Redeployment of Surplus Staff)
Rules, 1990 - It could not be demonstrated as
to how CCS Rules, 1990 are applicable on the
teaching faculty of the University. Therefore, the
contention of their redeployment in accordance
with Rule 4 of Rules, 1990, is misconceived.
(Para 25, 43)

Writ petition allowed. (E-4)

Precedent followed:

## Text

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82 INDIAN LAW REPORTS ALLAHABAD SERIES
in the present case. Accordingly, the court is of
the opinion that the second submission of the
petitioner is also devoid of merit.

22. Further, it is pertinent to mention that
there is nothing on record to indicate that the
order of this court dated 18.01.2018 in Writ
Petition No. 772 (S.B.) of 2018 has either been
vacated or set aside in appeal and as long as the
order of this court dated 18.01.2018 stands, the
authorities are bound to obey it.

23. Given the reason above, the
impugned order cannot be said to be arbitrary or
illegal. The writ petition lacks merit and is,
accordingly, dismissed with no order as to cost.
----------
(2020)09ILR A82
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.04.2020

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ A No. 15599 of 2019

Dr. Somu Singh & Ors. ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare, Sri Shantanu Khare, Sri
Kamlesh Kumar Yadav

Counsel for the Respondents:
A.S.G.I., Sri Krishna Raj Singh Jadaun, Sri
Vikram D. Chauhan, Sri Vinay Kumar Singh,
Sri V.K. Upadhyay

A.Education/ServiceLawDiscrimination/arbitrariness-
National
council of Teacher Education(Recognition
Norms & Procedure)Regulations, 2009:
Regulation
5;
Central
Civil
Services
(Redeployment of Surplus Staff)Rules,
1990: Rule 4; National Council for Teacher
Education Act, 1993: Section 17-The
University being instrumentality of the
state should act as a model employer and
should not treat its employees unequally,
arbitrarily or to put them in a position
which would seriously prejudice and
jeopardize the future of its employees.
(Para 38)

Advertisement No. 01/2009-10 pursuant to
which petitioners have been appointed as
Lecturers in B.Ed. Course, shows that the posts
were advertised for RGSC (Rajiv Gandhi South
Campus). Whereas, facts clearly show that B.Ed.
course at RGSC was being run without the
approval of the NCTE (National Council for
Teacher
Education).
Under
Secretary
(Inspection), NCTE vide letter dated 26.04.2017
approved to run B.Ed. course at the faculty of
education at the main campus of the University
with intake of 280 students, therefore, it could
not be justified as to how the posts have been
sanctioned for the faculty of education at RGSC
to run B.Ed. course, for which no permission
was granted by the NCTE. Therefore, Court
derived the conclusion that the petitioners were
appointed against the posts sanctioned at
Faculty
of
Education
at
the
University,
Kamachha Varanasi (main campus of the
University). (Para 34)

The action of university is discriminatory
and arbitrary in asking the petitioner to report
at RGSC. Once the University has allowed the
staff of B.P.Ed. (Bachelor of Physical Education)
to discharge their duties at main campus after
the closure of the B.P.Ed. Course at the South
Campus, the petitioners who are similarly placed
are entitled to discharge their duties at the Main
Campus of the University. (Para 36)

B. It is no doubt true that University has
prerogative
to
take
work
from
the
petitioners as and when it is required, but
this prerogative is subject to certain
limitations and restrictions that it should
be exercised in consonance with the
principle of right to equality and fairness.
(Para 37)

The University has not specified the nature of
work which the University would ask the
petitioners
to
discharge
at
RGSC.
The
9 All. Dr. Somu Singh & Ors. Vs. Union of India & Ors.
83
petitioners have been appointed to impart
teaching classes in the faculty of education in
the stream in which they are specialized.
Therefore, it would not be fair and appropriate
on the part of the University to compel the
petitioners to discharge any other duty or teach
a subject in which they are not specialized. It
would seriously prejudice and jeopardize their
chances to claim several benefits available to
them under the Career Advancement Scheme.
(Para 38, 39, 42)

C. Applicability of Rule 4 of Central Civil
Services (Redeployment of Surplus Staff)
Rules, 1990 - It could not be demonstrated as
to how CCS Rules, 1990 are applicable on the
teaching faculty of the University. Therefore, the
contention of their redeployment in accordance
with Rule 4 of Rules, 1990, is misconceived.
(Para 25, 43)

Writ petition allowed. (E-4)

Precedent followed:

1. Vice Chancellor L.N. Mithila University Vs
Dayanand Jha, (1986) 3 SCC 7 (Para 39)

Present petition challenges ECR No. 108
dated 07.06.2019 (circulated by circular
dated 08.07.2019), passed by Executive
Council,
Banaras
Hindu
University,
Varanasi
and
communications
dated
13.09.2019 and 16.09.2019 issued by
Assistant
Registrar
(AdministrationTeaching) and the Professor Incharge,
RGSC, Barkaccha, Mirzapur respectively.

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Ashok Khare, learned Senior
Counsel assisted by Sri Kamlesh Kumar Yadav,
learned counsel for the petitioners and Sri V.K.
Upadhyay, learned Senior Counsel assisted by
Sri Vikram D. Chauhan, learned counsel for the
respondents.

2. The petitioners in the present
petition have mainly prayed for the
following reliefs:-

"(a). a writ, order or direction in
the nature of certiorari quashing the ECR
No.108 passed by Executive Council,
Banaras Hindu University, Varanasi in its
meeting dated 7.6.19, as circulated by
circular dated 8.7.19, issued by Section
Officer, Executive Council Cell (Annexure
No.12).

(b). a writ, order or direction in
the nature of certiorari quashing the
communications dated 13.9.19 and 16.9.19
issued
by
the
Assistant
Registrar
(Administration-Teaching)
and
the
Professor Incharge, Rajiv Gandhi South
Campus, Barkaccha, Mirzapur respectively
(Annexure Nos.13 & 14);

(c). a writ, order or direction of a
suitable
nature
commanding
the
respondents
not
to
interfere
in
the
functioning of the petitioners at Faculty of
Education, Banaras Hindu University,
Kamachha, Varanasi, and to pay the
petitioners their regular monthly salary on
the said post regularly every month."

3. The brief facts of the case are that
Banaras Hindu University (hereinafter
referred to as 'University') notified an
advertisement bearing No.01/2009-10 in
the newspaper namely 'Employment News'
dated 30th May, 2009 inviting applications
for a large number of teaching posts in
different departments.

4. The said advertisement included
post of of Lecturer in Education (Hindi)
bearing Post Code No.3742; one post of
Lecturer in Education (Sanskrit) bearing
Post Code No.3743; one post of Lecturer in
Education (Computer Science) bearing Post
Code No.3744; one post of Lecturer in
Education
(Political
Science/History/Geography/Economics)
bearing Post Code No.3745; post of
Lecturer in Education bearing Post Code
84 INDIAN LAW REPORTS ALLAHABAD SERIES
No.3748 for Rajiv Gandhi South Campus,
Barkachha, Mirzapur and one post of
Lecturer
in
Education
(Mathematics)
bearing Post Code No.3746 for Mahila
Mahavidyalaya.

5. The petitioner no.1, Dr. Somu
Singh being eligible applied under the
Physically Handicap category for the post
of Lecturer in Education bearing Post Code
No.3748. Petitioner no.2, Dr. Ajay Kumar
Singh applied for consideration against the
post of Lecturer in Education (Political
Science/History/Geography/Economics)
bearing Post Code No.3745, and petitioner
no.3, Dr. Vinod Kumar Singh, applied for
being considered for the post of Lecturer in
Education (Mathematics) bearing Post
Code No.3746.

6. The petitioners were issued
interview letters for appearing before the
Selection
Committee.
Each
of
the
petitioners appeared before the Selection
Committee on the scheduled date and were
recommended
for
appointment.
The
recommendation
of
the
Selection
Committee was approved by the Executive
Council.

7. The petitioner nos.1 and 2 were
appointed by appointment letter dated
16.04.2010 while petitioner no.3 was
appointed by appointment letter dated
16.04.2010/01.07.2010 issued by Deputy
Registrar
(Recruitment
& Assessment
Cell), University. All the petitioners were
appointed as Lecturer in Education in Rajiv
Gandhi
South
Campus,
Barkachha,
Mirzapur
(hereinafter
referred
to
as
'RGSC'). As per the appointment letter,
petitioners were directed to report for duty
in the enclosed proforma to the Dean
Faculty of Education, main campus at the
University within one month from the date
of issue of the letter.

8. The Head and Dean of the
Education Department of the University by
letter
dated
17.04.2010
directed
the
petitioner nos.1 and 2 to report immediately
to the O.S.D./B.Ed. Course Coordinator,
RGSC
for
further
instructions.
The
petitioner no.3 was directed by the Dean,
Faculty of Education to report to the
O.S.D./B.Ed. Course Coordinator of RGSC
for joining. The petitioners pursuant to the
direction of Head and Dean of the
Education Department reported to the
O.S.D./B.Ed. Course Coordinator of RGSC
and started discharging their duties at
RGSC.

9. It transpires from the record that
The
National
Council
for
Teacher
Education (hereinafter referred to as
'NCTE')
on
26.04.2017
sent
a
communication to the Registrar of the
University taking objection against the
B.Ed. course being run at RGSC. The
aforesaid communication also recorded the
fact that by an order dated 30.09.1997
passed by NCTE, the recognition had been
accorded for running of B.Ed. course in the
Faculty of Education of the University at
Kamachha, Varanasi with an annual intake
of 180 seats, and for an additional intake of
100 seats in B.Ed. course was granted by
subsequent
order
dated
09.09.2006,
therefore, total intake is 280 seats. The said
communication also recites that NCTE has
not granted recognition for its South
Campus situated at RGSC. Thereafter, on
03.08.2018,
the
Regional
Director,
Northern Regional Committee, NCTE
communicated
its
objection
to
the
University against running of B.Ed. course
at RGSC without prior approval of NCTE.
9 All. Dr. Somu Singh & Ors. Vs. Union of India & Ors.
85

10. Subsequently, the Northern
Regional Committee of NCTE in its 287th
meeting held from 18-20.07.2018 vide item
no.91 decided for issuing a show cause
notice to the University under Section 17 of
NCTE Act, 1993.

11. According to the petitioners, the
Undergraduate Entrance Test-2018 Information
Bulletin did not indicate even a single seat in the
Faculty of Education for admission to RGSC and
no fresh admissions were made to B.Ed. course at
RGSC during the academic session 2018-19 and
2019-20. The students, who had been admitted to
B.Ed. first year course during the academic
session 2017-18 completed their studies in the
second year of B.Ed. course during the academic
session 2018-19 and their session came to an end
in May, 2019.

12. The Dean, Faculty of Education of
the University on 13.05.2019 issued a
communication to each of the petitioners
asking them to discharge their duties from
21.05.2019 at Faculty of Education, main
campus of the University at Kamachha,
Varanasi. Pursuant to the aforesaid order,
each of the petitioners submitted their
joining on 21.05.2019 at Faculty of
Education, main campus of the University
at Kamachha, Varanasi.

13. It appears that the Executive
Council in a meeting held on 07.06.2019
passed a resolution vide item no.2 being
ECR 108 that the teachers and employees
appointed to teach different courses at
RGSC should not be transferred to the
Main Campus even if all the courses had to
be closed, and the teachers appointed
therein should be asked to discharge their
duties in other courses being run at RGSC.

14.

The
Assistant
Registrar
(Administration) on 13.09.2019 issued a
communication to the Dean, Faculty of
Education asking him to relieve the
teachers of education who were posted at
RGSC and are presently working in the
Faculty of Education at the main campus of
the University for joining back at RGSC.
Pursuant
thereto,
Professor
In-charge,
RGSC
on
16.09.2019
sent
a
communication to the Dean, Faculty of
Education
at
main
campus
of
the
University for relieving the teachers of
education for being posted at RGSC.

15. The grievance of the petitioner is
that though, the course of B.Ed. has been
closed at RGSC in view of objection raised
by the NCTE and no students in the B.Ed.
course have been admitted since 2018, yet
petitioners are being forced to report back
at RGSC when there is no work for the
petitioners as they are eligible and qualified
in their specialty to teach students of
education. Their further grievance is that if
they
are
precluded
from
imparting
education in their specialty, they would not
be able to fulfill the norms prescribed by
UGC for the grant of Career Advancement
Scheme. Thus, the action of respondent
would seriously prejudice the chance of
promotion
of
petitioners
and
would
jeopardize the carrier of the petitioners.

16. The petitioner has also claimed
parity with Dr. Rajesh Prasad Shukla and
Professor Shantanu Kumar Swain who
were also deputed for discharging their
duties at RGSC and were brought to the
main faculty of University and have been
discharging their duties at the main faculty.
In the aforesaid factual backdrop, the
petitioners have prayed for the relief
extracted above.

17. The respondent-University filed
counter affidavit contending inter alia that
86 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners were appointed pursuant to an
advertisement notifying the posts for
selection and appointment at RGSC. It is
further stated that appointment letters of the
petitioners clearly specified the place of
posting
at
RGSC.
The
respondentUniversity further averred that it is the
domain and the prerogative of the employer
to take work from the petitioner as and
when it is required, and the petitioners have
no right to choose the place of working
specially when the sanctioned post against
which petitioners have been appointed is at
RGSC. The respondent-University also
pleaded
that
petitioners
are
under
administrative control of the Professor
Incharge,
RGSC
and
salary
of
the
petitioners are also drawn from RGSC. The
respondent-University further pleaded that
Dr. Rajesh Prasad Shukla and Professor
Shantanu Kumar Swain, who applied for
the post of Professor pursuant to an
Advertisement
No.02/2005/06
dated
08.10.2005 notifying the selection and
appointment for the post at the main
campus, were issued appointment letters in
respect of the faculty of education at the
main
campus
of
the
University
at
Kamachha,
Varanasi,
therefore,
the
petitioners cannot claim parity with them.

18. The petitioners filed rejoinder
affidavit stating that they are qualified and
have
been
selected
for
imparting
instructions in B.Ed. course in the faculty
of education which course has been
stopped at RGSC and is no longer
functional. The petitioners are neither
equipped nor qualified for teaching any
other subject. It is further stated that after
stoppage of teaching in B.Ed. course at
RGSC where studies were being imparted
to 50 students, the entire teaching work for
B.Ed. course for complete annual intake of
50 students would continue at the main
campus. It is also averred that under the
Career
Advancement
Scheme
various
norms are prescribed by the UGC which
includes
award
of
marks
on
every
assessment year which would be an
impossibility in case the petitioners are
deprived from imparting teaching in B.Ed.
course .

19. The petitioners through rejoinder
affidavit have also brought on record the
appointment letter of Rajesh Prasad Shukla
and Dr. Shantanu Kumar Swain, who
applied for selection and appointment for
the post of Professor Incharge at RGSC
against
Advertisement
No.02/2005/06
which shows that they were posted at
RGSC, but have been brought back to the
main faculty Kamachha, Varanasi.

20. Learned Senior Counsel for the
petitioners has contended that the action of the
respondent-university in posting the petitioners
back to RGSC is illegal, arbitrary and
discriminatory. He submits that it is evident
from the record that NCTE never accorded
permission to the University to run B.Ed.
course at RGSC, and the said course was run by
the University at RGSC without any approval
of the NCTE. He submits that the NCTE has
accorded approval of total intake of 280 seats
for the faculty of education at the main campus
of the University. Thus, he submits that though,
the petitioners were posted at RGSC, but the
faculty of education run at RGSC was part and
parcel of the main faculty of education of the
main campus of the University at Varanasi,
accordingly, the stand of the University that
petitioners have been appointed against the
sanctioned post of the faculty of education at
RGSC is incorrect and against the record.

21. He submits that University has not
brought anything on record to indicate that
NCTE has approved the intake of 50 seats
9 All. Dr. Somu Singh & Ors. Vs. Union of India & Ors.
87
for imparting teaching in faculty of
education at RGSC rather it is manifest
from the record that on objection being
raised by the NCTE, the University had to
stop classes in faculty of education at
RGSC. He submits that the fact that at
present no education is being imparted at
the faculty of education at RGSC is not
disputed b the University. He submits that
petitioners are qualified and eligible to
teach students in education in their
specialized subjects and are not equipped to
teach other subjects, therefore, there is no
work for the petitioners at RGSC, and for
them to continue at RGSC would seriously
prejudice their career, as they would be
deprived to acquire various eligibility
criteria prescribed by the UGC to avail the
benefit
under
Career
Advancement
Scheme.

22. He further submits that petitioners
have stated in paragraph 36 of the writ
petition that there exists a shortage of six
Assistant Professor for Social Science and
three Assistant Professor for Mathematics,
therefore, petitioners can be easily adjusted
on the aforesaid vacant posts as faculty at
RGSC is in fact a part and parcel of faculty
of education of main campus of the
University. In this regard, he has placed
reliance
upon
memorandum
dated
28.06.2017 issued by Registrar of the
University which states that 'The permanent
teachers appointed at RGSC may be
included as members in various bodies like
DRC, Board of Examiners, etc. as per
existing norms.'

23. He further submits that Dr. Rajesh
Prasad Shukla and Professor Shantanu
Kumar Swain, who have been posted and
discharging their duties at RGSC have been
brought back to the main faculty of the
University and Dr. Rajesh Prasad Shukla is
presently Head and Dean of faculty of
education. Thus, the submission is that
petitioners
are
also
identically
circumstanced, and therefore, are entitled to
be treated alike and thus, they should be
posted at faculty of education at main
campus of the University. He further
submits that the University has not brought
on record any application wherefrom it can
be culled out that University would obtain
necessary permission to run B.Ed. course at
RGSC. He further submits that Regulation
5
of
National
Council
for
Teacher
Education
(Recognition
Norms
&
Procedure),
Regulations,
2009,
which
prescribes
the
manner
of
making
application and time limit for permission to
run classes in particular subject, provides
that duly completed applications in all
respect may be submitted to the Regional
Committee during the period from the 1st
September till 31st of October of the
preceding year to the academic session for
which recognition has been sought. He
submits that no such application has been
submitted by the respondents within the
prescribed time under Regulation 5(4) of
Rules, 2009, therefore, it is evident that
University is not going to start faculty of
education at RGSC in near future.

24. Per contra, learned Senior
Counsel for the respondents has placed
advertisement against which petitioners
have been appointed to contend that the
appointment of petitioners have been made
for RGSC, and therefore, they cannot be
adjusted or absorbed in the faculty of
education at the main campus of the
University. He further contends that it is the
domain of the employer to take work from
his employee as and when it is required and
employee have no right to choose the place
of working specially when the sanctioned
post against which petitioners have been
88 INDIAN LAW REPORTS ALLAHABAD SERIES
appointed is at RGSC. He contends that the
post of Lecturer in education on which
petitioners have been appointed still exists
at RGSC, hence, the petitioners cannot
make any hue and cry asking them to join
at RGSC. He submits that case of Dr.
Rajesh
Prasad
Shukla
and
Professor
Shantanu
Kumar
Swain
with
whom
petitioners have claimed parity is not
identical to that of petitioners inasmuch as
Dr. Rajesh Prasad Shukla and Professor
Shantanu
Kumar
Swain
have
been
appointed
pursuant
to
Advertisement
No.02/2005/06 notifying the selection and
appointment for the post at main campus.
Thus, he submits that petitioners do not
have any right to be posted at the main
faculty of the University.

25.

Learned
counsel
for
the
respondent-University has placed reliance
upon Rule 4 of the Central Civil Services
(Redeployment of Surplus Staff) Rules,
1990 (hereinafter referred to as 'Rules,
1990') to contend that petitioners have been
redeployed
in
accordance
with
the
aforesaid rules. It is also contended that
B.Ed course at RGSC is temporarily
suspended and faculty of B.Ed. at RGSC
has not yet closed. He submits that
petitioners have been appointed against the
sanctioned post at RGSC, and if they are
allowed to be accommodated at the main
faculty of the University that would amount
to
allowing
backdoor
entry
of
the
petitioners in the main campus of the
University.

26. I have considered the rival
submissions of the parties and perused the
record.

27. The issue for determination in the
present petition is as to whether the
decision of the University asking the
petitioners to report back at RGSC is
arbitrary and discriminatory.

28. The facts as emerge from the
record are that petitioner nos.1 & 2 have
been appointed as Lecturer in the Faculty
of Education in different streams by
appointment letter dated 16.04.2010 and
petitioner
no.3
was
appointed
by
appointment letter dated 28.06.2010. As per
appointment letter, the petitioners were
asked to report for duty in the prescribed
proforma
to
the
Dean,
Faculty
of
Education, at the main campus of the
University, though their appointment was
as Lecturer in the faculty of education at
RGSC. Pursuant to the appointment letters,
petitioners reported for joining to the Head
and Dean of the faculty of education at the
main
campus
of
the
University
at
Kamachha, Varanasi.

29.

The
petitioners,
thereafter,
reported to the O.S.D./B.Ed. Course
Coordinator, RGSC in pursuance to the
office order dated 17.04.2010 and have
been discharging their duties as Lecturer in
the faculty of education at RGSC. Further,
the letter dated 26th April, 2017 of the
Under
Secretary
(Inspection),
NCTE
addressed to the Registrar of the University,
Kamachha,
Varanasi
records
that
recognition for B.Ed. course was granted to
the University, Kamachha, Varanasi U.P.
vide
order
No.NRC/NCTE/F-3/UP25/97/4957 dated 30.09.1997 with an
annual intake of 180 seats. The said letter
also records that additional annual intake of
100 seats in B.Ed. course was granted vide
order No.NRC/NCTE/F-7/5677-5703 dated
09.09.2006, thus, total intake is 280 seats.
The said letter also specifically records that
NRC, NCTE has not granted recognition
for its south campus situated at RGSC. The
University does not dispute the correctness
9 All. Dr. Somu Singh & Ors. Vs. Union of India & Ors.
89
of the aforesaid letter dated 26.04.2017 and
the show cause notice dated 03.08.2018
and decision of the NRC, NCTE in the
287th meeting vide Item No.91 resolving to
issue show cause notice to the University as
to how it had run B.Ed. course at RGSC
without approval of the NCTE .

30. The aforesaid correspondence
between the University and the NCTE
clearly reveals that NCTE has not granted
any
approval
or
recognition
to
the
University to run B.Ed. course at RGSC.
The University has not made any averment
in the counter affidavit explaining as to
how it had run B.Ed. course at RGSC
without
any
approval
or
recognition
granted by the NCTE. Thus, it can safely be
culled out that intake of 280 seats of
students has been approved by the NCTE to
run B.Ed. course at the main faculty of
University at Kamachha, Varanasi.

31. The petitioners have made
specific averment in paragraph 23 of the
writ petition that after 2018, no fresh
admissions were made during the academic
session 2018-19 & 2019-20 at RGSC and
no
teaching
work
in
the
education
department is taking place. The University
in paragraph 18 of the counter affidavit has
not denied the averments made by the
petitioners in paragraph 23 of the writ
petition. As there was no permission or
approval by the NCTE to run B.Ed. course
at RGSC, therefore, it implies that there
cannot be any post sanctioned for the
department of education at RGSC.

32. The petitioners have also stated in
paragraph 36 of the writ petition that there
exists a shortage of six Assistant Professor
for Social Science and three post for
Assistant Professor for Mathematics. The
said fact has also not been denied by the
University in the counter affidavit. Though,
the University has taken specific objection
in the counter affidavit that appointment of
the petitioners have been made against the
post at RGSC, but it has not made any
averment in the counter affidavit nor filed
any document on record to demonstrate
that separate posts have been sanctioned for
the Faculty of Education at RGSC.

33. Further, the University has tried to
defend its action against the allegation of
discrimination made by the petitioner by
stating that Dr. Rajesh Prasad Shukla and
Professor Shantanu Kumar Swain, though
posted at RGSC, were appointed against
the post at the main campus of the
University at Barkachha as is evident from
the Advertisement No.02/2005/06 that the
posts were advertised for the main campus
of the University, Kamachha Varanasi.
Accordingly, the case of petitioners are not
identical to Dr. Rajesh Prasad Shukla and
Professor
Shantanu
Kumar
Swain
inasmuch as the post notified for selection
against the Advertisement No. 01/2009-10
pursuant
to
which
petitioners
were
appointed
were
for
the
Faculty
of
Education at RGSC.

34. A perusal of the Advertisement
No.
01/2009-10
pursuant
to
which
petitioners have been appointed shows that
the posts were advertised for RGSC, but
the facts detailed above clearly shows that
B.Ed. course at RGSC was being run
without the approval of the NCTE. It is also
manifest from the various correspondence,
referred above, between the University and
the NCTE that there was no recognition by
the NCTE granting permission to the
University to run B.Ed. course at RGSC.
The intake of 280 students as it is evident
from
the
letter
of
Under
Secretary
(Inspection), NCTE dated 26.04.2017 was
90 INDIAN LAW REPORTS ALLAHABAD SERIES
approved to run B.Ed. course at the faculty
of education at the main campus of the
University, therefore, in such factual
backdrop, it is difficult to understand as to
how the posts have been sanctioned for the
faculty of education at RGSC for which no
permission was granted by the NCTE to
run B.Ed. course, therefore, the only
conclusion which can be derived from the
facts in the present case is that the
petitioners were appointed against the posts
sanctioned at Faculty of Education at the
University, Kamachha Varanasi, more so,
when the University has not explained in
the counter affidavit as to how the posts at
RGSC in the faculty of education were
sanctioned when there was no permission
by the NCTE to run B.Ed. course at RGSC.

35. Accordingly, the Court does not
find any merit in the defence of the
University that case of petitioners are not
identical to that of Dr. Rajesh Prasad
Shukla and Professor Shantanu Kumar
Swain as it is manifest from the record that
the faculty of education at RGSC is part
and parcel of the faculty of education at the
main campus of the University and the
petitioners could be appointed on the
sanctioned post in the faculty of education
at the main campus of the University.

36. It is also worth to notice that
petitioners in paragraph 40 of the writ
petition have stated that the course of
B.P.Ed. (Bachelor of Physical Education)
was also commenced at South Campus,
Barkachha, and on being objection taken by
the NCTE, the B.P.Ed. course at South
Campus, Barkachha was closed and the
staff engaged at South Campus in the
faculty of B.P.Ed has been allowed to
function at main campus of the University,
Kamachha
Varanasi.
The
aforesaid
paragraph
has
been
replied
by
the
University in paragraph 27 of the counter
affidavit wherein University has not denied
the averments made by the petitioners in
paragraph 40 of the writ petition. In view of
the aforesaid fact also, the action of
university is discriminatory and arbitrary in
asking the petitioner to report at RGSC
inasmuch as once the University has
allowed the staff of B.P.Ed. to discharge
their duties at main campus after the
closure of the B.P.Ed. Course at the South
Campus, the petitioners who are similarly
placed are entitled to discharge their duties
at the Main Campus of the University.

37. Now, coming to the submission of
learned Senior Counsel for the University
that it is the domain of the employer that
University
should
take
work
from
petitioners as and when it is required and
petitioners have no right to choose the
place of working. It is no doubt true that
University has prerogative to take work
from the petitioners as and when it is
required and petitioners have no right to be
posted at the main campus at University,
Varanasi, but this prerogative is subject to
certain limitations and restrictions that it
should be exercised in consonance with the
principle of right to equality and fairness.

38.

The
University
being
instrumentality of the state should act as a
model employer and should not treat its
employees unequally, arbitrarily or to put
them in a position which would seriously
prejudice and jeopardize the future of its
employees. In the present case, it is not in
dispute that B.Ed. course at RGSC has been
stopped. The University did not have any
permission from the NCTE to run B.Ed.
courses at RGSC. As on today, there is no
work in the Faculty of Education at RGSC.
The University in the counter affidavit has
not specified the nature of work which the
9 All. Dr. Somu Singh & Ors. Vs. Union of India & Ors.
91
University would ask the petitioners to
discharge at RGSC.

39. The petitioners have been
appointed to impart teaching classes in the
faculty of education in the stream in which
they are specialized. Therefore, it would
not be fair and appropriate on the part of
the University to compel the petitioners to
discharge any other duty or teach a subject
in which they are not specialized. It would
be apt to refer a judgment of the Apex
Court in the case of Vice Chancellor L.N.
Mithila University Vs. Dayanand Jha
1986 (3) SCC 7 which does not support the
contention of the University that it has
absolute discretion to take any work from
the petitioners which it desires to take from
them. Paragraph 8 of the said judgement is
extracted hereinbelow:-

"8. The pre-requisite of the power
of the Vice-Chancellor under Section
10(14) of the Act to transfer any teacher
occupying a post in any department or
college maintained by the University to any
equivalent post in another department or
college maintained by it is that they must,
broadly, bear the same characteristics. The
mere circumstance that the two posts are
carried on the same scale of pay is not
enough. That is because in the original text
of the Amendment Act the words used in
Section 10(14) as well as in the expression
'other equivalent post' as defined in Section
2 (ka, chh) are 'Samakaksh Pad'. Learned
counsel for the respondent is therefore right
in contending that equivalence of the payscale is not the only factor in judging
whether the post of Principal and that of
Reader are equivalent posts. We arc
inclined to agree with him that the real
criterion to adopt is whether they could be
regarded of equal status and responsibility,
The term 'teacher' is defined in Section
2(ka, chh) to include Principal, University
Professor,
College
Professor,
Reader,
Lecturer etc. Professors of the University
like head of the department, College
Professors, Readers, Lecturers belong to
different grades and discharge different
duties and responsibilities. The power of
the Vice-Chancellor to transfer any teacher
under Section 10(14) is controlled by the
use of the word 'Samakaksh' and he can not
transfer any teacher from one post to
another in a department of the university or
a college unless they belong to the same
class. In that view, there can be no doubt
that the two posts of Principal and Reader
cannot be regarded as of equal status and
responsibility.
The
true
criterion
for
equivalence is the status and the nature and
responsibility of the duties attached to the
two posts. Although the two posts of
Principal and Reader are carried on the
same scale of pay, the post of Principal
undoubtedly
has
higher
duties
and
responsibilities. Apart from the fact that
there are certain privileges and allowances
attached to it, the Principal being the head
of the college has many statutory rights,
such as: (i) He is the ex-officio member of
the Senate, (ii) He has the right to be
nominated as the member of the Syndicate,
(iii) As head of the institution, he has
administrative control over the College
Professors, Readers, Lecturers and other
teaching and non-teaching staff, (iv) The
Principal of a constituent college is also
the ex-officio member of the Academic
Council of the University. And (v) He has
the right to act as center Superintendent in
the University examinations. It is thus
evident that the High Court was right in
holding that the post of Reader could not
be regarded as an equivalent post as that of
Principal in the legal sense. Maybe, when
the affairs of a college maintained by the
University are mismanaged, the Vice-
92 INDIAN LAW REPORTS ALLAHABAD SERIES
Chancellor may, for administrative reasons,
transfer a Professor or Reader of any
department or college maintained by it to the
post of the Principal of such college, but the
converse may not be true. While the Professors
and Readers by reason of their learning and
erudition may enjoy much greater respect in
society than the Dean or Principal of a college,
it does not follow that the post of Principal must
be treated as equivalent to that of a Reader for
purposes of Section 10(14) of the Bihar State
Universities Act, 1976, as amended."

40. The learned Senior Counsel for
the
respondent-University
has
also
submitted that discontinuance of the B.Ed.
course at RGSC is temporary. In this
regard, he has placed an affidavit of Dr.
K.P. Upadhyay, Registrar of the University
dated 06.07.2015 submitted to NCTE,
which has been taken on record, to contend
that
University
has
conveyed
its
willingness to run three units (two units at
the main campus & one unit for RGSC) of
B.Ed. course. Accordingly, he submits that
University is endeavouring to get one unit
sanctioned for RGSC to commence B.Ed.
course.

41. The said affidavit is of year 2015
and more than four years have passed and
no permission to run one unit of B.Ed.
course at RGSC has yet been accorded to
the petitioners. Further, as per Regulation
5(4)
of
the
Regulation,
2009,
the
application has to be submitted to the
Regional Committee concerned during the
period from 1st September till 31st October
of the preceding year to the academic
session for which recognition has been
sought. The University has not brought on
record any application submitted by it
within the period prescribed in Regulation
5(4) seeking approval of the NCTE to run
B.Ed. course at RGSC.

42. The aforesaid contention of
learned
counsel
for
the
respondentUniversity does not seems to be correct. It
is also important to consider that if
petitioners were asked to sit idol or were
asked to do work for which they have not
been
appointed,
it
would
seriously
prejudice and jeopardize their chances to
claim several benefits available to them
under the Career Advancement Scheme
inasmuch to avail the benefit under Career
Advancement Scheme, petitioners have to
fulfill certain norms prescribed by the
University
Grants
Commission
which
includes awards of marks in every
academic session year etc.

43. The contention of the learned
Senior Counsel for the University that the
petitioners
have
been
redeployed
in
accordance with Rule 4 of Rules, 1990 is
also misconceived inasmuch as the counsel
for the respondents could not demonstrate
as to how the Rules, 1990 is applicable on
the teaching faculty of the University.

44. In view of the aforesaid
discussion, this Court finds that action of
respondents in asking the petitioners to
report back at RGSC where B.Ed. courses
have been stopped and there is no work for
the
petitioners
is
arbitrary
and
discriminatory. Consequently, the decision
of the Executive Council in ECR No.108 in
meeting dated 07.06.2019 as circulated by
Circular dated 08.07.2019 (Annexure No.
12) and communications dated 13.09.2019
and
16.09.2019
issued
by
Assistant
Registrar (Administration) (Annexure No.
13 & 14) are quashed. The Respondents are
directed not to interfere in the working of
the petitioners at the main campus of the
University and pay their salary and other
benefits admissible to them. Further, it is
open to the University to transfer and post
9 All. Dharmendra Kumar Vs. State of U.P. & Ors.
93
the petitioners at RGSC, if they so desire
whenever B.Ed. course after following due
procedure and permission from the NCTE
commences at RGSC.

45. For the reasons give above, the writ
petition is allowed subject to observations
above with no orders as to cost.
----------
(2020)09ILR A93
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.06.2020

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Writ A No. 19777 of 2007

Dharmendra Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Satya Prakash Pandey

Counsel for the Respondents:
C.S.C., Sri J.P. Singh, Sri Shailendra Singh

A. Service Law -Police Act, 1861- U.P.
Police Regulations - Constitution of India -
Article 309 - U.P. Temporary Government
Servants (Termination of Services) Rules,
1975-Cancellation
of
selection
on
concealment of material fact-The rules
framed under proviso to Article 309 of the
Constitution of India including the U.P.
Temporary
Government
Servants
(Termination of Service) Rules, 1975, are
not applicable to the police force as their
services are governed by the Police Act,
1861, the Rules and the U.P. Police
Regulations, framed under the Police Act,
1861. (Para 16, 17)

Therefore, the impugned order of termination
dated 07.04.2007 passed under Rules, 1975
cannot be sustained being without jurisdiction.
(Para 18)
B. Suppression of 'material' information
presupposes that what is suppressed that
'matters' not every technical or trivial
matter. The employer has to act on due
consideration of rules/instructions if any in
exercise of powers in order to cancel
candidature or for terminating the services
of employee.