# Moti Lal Nehru Medical College Teachers Asso. Allahabad & Anr v. State of U.P. & Ors

- **Citation:** (2015) 3 ILRA 1400
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-08-13
- **Case number:** Writ-A No. 59582 of 2009
- **Bench:** Arun Tandon, Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/moti-lal-nehru-medical-college-teachers-asso-allahabad-anr-v-state-of-u-p-ors-43332
- **Pages:** 13

## Headnote

(A)Constitution of India, Art.-226-Writ
Petition-maintainability-petitioner
being
teacher governed by U.P. State Medical
College Teachers Service Rules 1990objecting induction of Doctors working on
deputation basis governed by Provincial
Medical Health Services Rules 2004-after
commencement
of
Central
Universitypetition by individual as well as on behalf
of
Association
(Registered)
during
pendency
of
writ
petition-whether
maintainable?-held-'Yes'.
Held: Para-12
So far as the issue of maintainability of the
present writ petition is concerned we may
record that the petitioner no.1 which was
an unregistered society has since been
registered during the pendency of writ
petition on 16.11.2009. The writ petition
as on date is on behalf of a registered
Association, and therefore, the objection of
Sri Khare is, therefore, more technical than
substantive in nature. We are further of
the opinion that both the Association as
well as the petitioner no.2 have every right
to see that persons who are not Members
of the Cadre of U.P. State Medical College
Teachers Rules, 1990 are not inducted
through back door into the said Cadre of
Teachers. They have locus to challenge the
action of the State Government which
leads to such illegal induction inasmuch as
every Member of the Cadre has a right to
ensure that the Cadre contains only those
persons who are legally appointed into the
Cadre and not strangers having no right to
enter the Cadre under the relevant service
rules. For all the said reasons, the first
objection raised on behalf of Sri Khare
stands rejected
(B) Constitution of India. Art.-226-Right of
Depunist-Explained Teacher working in
Swaroop
Rani
Medical
College
being
governed by Provincial Medical Serviceafter end of deputation period-could claim
their absorption as Associate Profession in
Central University Allahabad?-held-'No'-
reasons explained.
Held:Para-29
3 All] Moti Lal Nehru Medical College Teachers Asso. Allahabad & Anr. Vs. State of U.P. & Ors. 1401
Considering
the
provisions
of
the
applicable Service Rules of 1990, referred
to above, as well as the ratio of law laid
down by the Apex Court, we have no doubt
that respondent nos.5 to 8 and 10, who
were members of P.M.S. Cadre and had
been sent on deputation to the Medical
College, could not have been absorbed as
Associate Professors in the Cadre of
Teachers of U.P. State Medical Colleges,
and their absorption in the Medical
Colleges as well as subsequent promotions
etc. are wholly without an authority of law.
Case Law discussed:
2007 (5) SCC 580; 2014 (1) ADJ 578; (1980) 1
SCC 149; 1994 SCC Supl. (1) 44

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES
other members, have been manoeuvred or
marks have been increased or decreased and
as per her own whims and fancies the final
select list had been prepared.
28. In view of the above, the
impugned orders cannot sustain and are
hereby set aside. The writ petitions are
accordingly allowed. The petitioners are
entitled to be reinstated forthwith.
29. So far as Shri Dilip Kumar Shukla
(since deceased)-petitioner no.1 in Writ-A
No.59355 of 2012 is concerned, he has been
substituted by his wife Smt. Seema Devi by
order dated 6.10.2015 and at this stage there
is no occasion for reinstatement of
petitioner no.1, as such Smt. Seema Devi
wife of Shri Dilip Kumar Shukla will be
entitled for all the consequential benefits as
permissible in law.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2015
BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE ASHWANI KUMAR MISHRA, J.
Writ-A No. 59582 of 2009
Moti Lal Nehru Medical College Teachers
Asso. Allahabad & Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri G.K. Singh, Sri Chandreshwar Prasad,
Sri G.K. Malviya, Sri R.D. Tiwari, Sri V.K.
Singh.
Counsel for the Respondents:
C.S.C., Sri Ashok Khare, Sri C.S. Singh, Sri
Kapil Rathore, Sri R.K. Upadhya, Sri S.D.
Kautilya, Sri Siddharth Khare, Sri Vikas
Budhwar, Sri Yogesh Agarwal.
(A)Constitution of India, Art.-226-Writ
Petition-maintainability-petitioner
being
teacher governed by U.P. State Medical
College Teachers Service Rules 1990objecting induction of Doctors working on
deputation basis governed by Provincial
Medical Health Services Rules 2004-after
commencement
of
Central
Universitypetition by individual as well as on behalf
of
Association
(Registered)
during
pendency
of
writ
petition-whether
maintainable?-held-'Yes'.
Held: Para-12
So far as the issue of maintainability of the
present writ petition is concerned we may
record that the petitioner no.1 which was
an unregistered society has since been
registered during the pendency of writ
petition on 16.11.2009. The writ petition
as on date is on behalf of a registered
Association, and therefore, the objection of
Sri Khare is, therefore, more technical than
substantive in nature. We are further of
the opinion that both the Association as
well as the petitioner no.2 have every right
to see that persons who are not Members
of the Cadre of U.P. State Medical College
Teachers Rules, 1990 are not inducted
through back door into the said Cadre of
Teachers. They have locus to challenge the
action of the State Government which
leads to such illegal induction inasmuch as
every Member of the Cadre has a right to
ensure that the Cadre contains only those
persons who are legally appointed into the
Cadre and not strangers having no right to
enter the Cadre under the relevant service
rules. For all the said reasons, the first
objection raised on behalf of Sri Khare
stands rejected
(B) Constitution of India. Art.-226-Right of
Depunist-Explained Teacher working in
Swaroop
Rani
Medical
College
being
governed by Provincial Medical Serviceafter end of deputation period-could claim
their absorption as Associate Profession in
Central University Allahabad?-held-'No'-
reasons explained.
Held:Para-29
3 All] Moti Lal Nehru Medical College Teachers Asso. Allahabad & Anr. Vs. State of U.P. & Ors. 1401
Considering
the
provisions
of
the
applicable Service Rules of 1990, referred
to above, as well as the ratio of law laid
down by the Apex Court, we have no doubt
that respondent nos.5 to 8 and 10, who
were members of P.M.S. Cadre and had
been sent on deputation to the Medical
College, could not have been absorbed as
Associate Professors in the Cadre of
Teachers of U.P. State Medical Colleges,
and their absorption in the Medical
Colleges as well as subsequent promotions
etc. are wholly without an authority of law.
Case Law discussed:
2007 (5) SCC 580; 2014 (1) ADJ 578; (1980) 1
SCC 149; 1994 SCC Supl. (1) 44
(Delivered by Hon'ble Arun Tandon, J.)
1. This writ petition has been filed by
the Moti Lal Nehru Medical College
Teachers Association through its Secretary
and by Dr. Dileep Chaurasiya, who is
working as Professor in the same Moti Lal
Nehru Medical College and is alleged to be
Secretary of the Association. The petitioners
before this Court seeks quashing of the
orders
dated
29.10.2009,
15.06.2009,
31.01.2009 and dated 29.10.2009.
2. Facts, in short, leading to the
present writ petition are as follows:-
(a). Moti Lal Nehru Medical College,
Allahabad (hereinafter referred to as "Medical
College") was originally the Faculty of
Medicines of the University of Allahabad
(when it was a State University), but
subsequently it was converted into a
Government Medical College. The University
of Allahabad continued to be the examining
body only.
(b). In the State of Uttar Pradesh,
Medical Officers to be appointed for
various District Hospitals and other
Government dispensaries are selected by
the U.P. Public Service Commission in
accordance with U.P. Medical and Health
Service Rules, 1945, as amended and
substituted by Medical and Health (Group B)
Services Rules, 1995 and now known as U.P.
Medical and Health Services Rules, 2004
(hereinafter referred to as "Rules, 2004"),
which have been enforced w.e.f. 11.08.2004.
The Doctors appointed under the said Rules
are commonly known as Members of
Provincial
Medical
Health
Services
(hereinafter referred to as "P.M.S. Cadre").
(c). So far as the teaching Faculty to
be appointed in Government Medical
Colleges are concerned, their appointment
and service conditions are regulated by
U.P. State Medical Colleges Teachers
Service Rules, 1990 (hereinafter referred
to as "Rules, 1990").
(d). It is not in dispute that the
minimum qualifications prescribed for the
post covered under the P.M.S. Cadre
Rules and those applicable to the
Teachers
of
Medical
Colleges
are
different. The petitioner no.1 before us is
the Association of Cadre Members
covered by the Rules, 1990.
(e). The respondent nos.5 to 8 and 10
are persons who were selected by the U.P.
Public Service Commission for the P.M.S.
Cadre and these persons were sent on
deputation to Moti Lal Nehru Medical
College at Allahabad on various dates
prior to the year 2005.
(f). The records reflect that the
sending of these respondent nos.5 to 8 and
10 was for a fixed term, which was
extended from time to time.
(g). On 19.07.2005, the University of
Allahabad was declared to be a Central
University by an Act of Parliament being
Act No. 26 of 2005.
(h). The respondent nos.5 to 8 and 10
are stated to have submitted their option
for being absorbed as the Teachers of the
1402
 INDIAN LAW REPORTS ALLAHABAD SERIES
Central University and because of the
pendency of their applications in the
matter of such absorption the State
Government permitted them to continue
at the Moti Lal Nehru Medical College,
Allahabad.
(i). We may record that this exercise of
option by respondent nos.5 to 8 and 10 was
in pursuance of an interim order dated
23.03.2007
passed
in
Public
Interest
Litigation No.32844 of 1997. The petition is
stated to have been decided under the
judgment and order dated 16.12.2011. The
relevant part of the interim order dated
23.3.2007, which deals with the exercise of
option, is being reproduced herein below:-
"The MD Eye Hospital matter has
attracted the attention of the Court to many
such deputationist of the State Government,
who are still working in the Medical
College and its Associated Hospitals. They
have no lien on the post and that their
deputation should not have exceeded
beyond the date, when the MLN Medical
College and its associated hospitals became
a part of the University. Their options for
absorption have to be considered by the
University in consultation with the State
Government. In the circumstances, all those
doctors and employees of the State
Government on deputation to MLN Medical
College and its Associated Hospitals, will
be allowed to continue and will draw their
salaries for the University only if they have
given their option to accept the terms and
service conditions of the University and are
relieved by the State Government to be
absorbed in the service of the University by
the University in accordance with the
ordinances to be made by the University in
this regard. Any teacher, officer or
employee, who do not opt to do so may be
relieved by the University to join back in the
State Government."
(j). No finding was returned by the
High Court in the said P.I.L. with regards to
the right of respondent nos.5 to 8 and 10 to
be absorbed as the Teachers of the Central
University or otherwise nor any issue in that
respect was examined in the final judgment.
We may also record that the interim order,
which referred to the exercise of option by
persons like the respondents for being
absorbed as Teachers of the Central
University, itself records that the absorption
was to be considered as per the Ordinances
to be made by the University and in
consultation with the State Government.
(k). With reference to Act No. 26 of
2005, it may be noticed that Moti Lal Nehru
Medical College, Allahabad was included as a
University College under Statute 30 subclause 4 of the First Statute of Allahabad
University, which were framed by the Central
Government, and were made part of the Act
itself as Schedule 1. Relevant Statute 30 subclause 4 is being quoted herein below:-
"30(4) The following shall be the
University Colleges, namely:-
The Motilal Nehru Medical College
and
Swarup
Rani
Nehru
Hospital,
Allahabad."
(l). The State Government was not
satisfied with the said institution being
declared to be a University College of the
Central University. The matter in that
regard was taken to the Apex Court in Civil
Appeal No. 1812 of 2007, wherein it was
directed that the issue as to whether the
college and the associated Hospital should
continue as a State Government College or
should be a University College belonging to
the University must be settled between the
University, the State and the Union at the
earliest having regard to the statutory
provisions, and till then status quo was
directed to be maintained. The oder of the
3 All] Moti Lal Nehru Medical College Teachers Asso. Allahabad & Anr. Vs. State of U.P. & Ors. 1403
Apex Court relevant for our purposes is
being quoted herein below:-
"The issue as to whether the College
and the associated Hospital should continue
merely as a constituent State Government
College affiliated to the University, or should
be a University College belonging to the
University, as also questions relating to its
administrative control, financing and other
related issues shall be settled by the
University, the State and the Union of India
at the earliest having regard to the relevant
statutory provisions. Till then, status quo, as
on today, shall continue.
The
Appeal
is
disposed
of
accordingly."
(m). The matter was examined between
the University, the State Government and the
Central
Government,
and
ultimately
Notification dated 16.07.2008 was issued
whereby Statute 14.1(iv), Statute 14(6) and
Statute 30(4) of the First Statutes of Allahbad
University
were
repealed.
For
ready
reference, the Notification dated 16.07.2008
is reproduced herein below:-
"The Government of India, Ministry of
Human Resource Development, Department
of Higher Education, Shastri Bhawan, New
Delhi,
has
communicated,
vide
letter
No.3214/2007-Desk(U) dated: the 9th July,
2008 (which has been received on 15th July,
2008), that H.E. The President, in her
capacity as the Visitor of University of
Allahabad, in exercise of the powers vested in
her under Section 28(5) of the University of
Allahabad Act, 2005, has been pleased to
repeal the following Statues of the University:
(i) Statute 14(1)(iv) relating to the
Faculty of Medicine.
(ii) Statute 14(6) relating to the
Departments
under
the
Faculty
of
Medicine.
(iii)Statute 30(4) relating to the
Motilal Nehru Medical College and
Swarup Rani Nehru Hospital. Allahabad
being a University College of the
University.
Accordingly the "Motilal Nehru
Medical College and Swarup Rani Nehru
Hospital Allahabad" ceases to be a
University College of the University, with
immediate effect."
(n). It is not in dispute that subsequent
to 16.07.2008 the Moti Lal Nehru Medical
College and Swarup Rani Nehru Medical
Hospital are under the administrative and
supervisory control of the State Government.
The University of Allahabad has even ceased
to be the examining body. The college is
now affiliated to Shahuji Maharaj Medical
University, Lucknow. It is also not in dispute
that all Teachers and Staff of Moti Lal Nehru
Medical College and Swarup Rani Nehru
Medical Hospital including respondent nos.5
to 10 are being paid salary by the State
Exchequer.
(o). It is admitted to the respondents
nos.5 to 10 that they are drawing salary
from the State Exchequer subsequent to
the Notification dated 16.07.2008.
(p). The petitioners in view of the
aforesaid facts contend that since the
respondent nos.5 to 8 and 10 are Members of
the P.M.S. Cadre and were working on
deputation at the Medical College at
Allahabad and further since the maximum
period of deputation has expired with
reference to the order of State Government
itself, they must be repatriated to their parent
department, and they can no longer be
permitted to continue at Medical College at
Allahabad. They seek quashing of the orders
referred to above, wherein directions were
issued for the continuance of respondent
nos.5 to 8 and 10 at Medical College at
Allahabad till the issue of absorption was
1404
 INDIAN LAW REPORTS ALLAHABAD SERIES
finally determined upon and ultimately under
the impugned order dated 29.01.2009 the
State
Government
has
directed
that
respondent nos.5 to 8 and 10 stand absorbed
in the service of the Medical College, their
lien in P.M.S. Cadre ceases, and they would
be treated as Teachers of Medical College.
3.
Sri G.K. Singh, learned Senior
Advocate assisted by Sri G.K. Malviya,
Advocate on behalf of the petitioner, has
submitted before us that the only mode and
manner of appointment for Teachers in
Medical College, as has been provided for, is
by
direct
recruitment
on
the
recommendations of the U.P. Public Service
Commission under the U.P. State Medical
Colleges Teachers Service Rules, 1990.
There is no provision for appointment by
way of deputation under the Rules, therefore,
the respondent nos.5 to 8 and 10 must be
repatriated to their parent department.
Submission is that the order of the State
Government dated 29.01.2009 cannot be
legally sustained. In support of his contention
Sri G.K. Singh has relied upon the judgment
of the Apex Court in the case of Arun Kumar
and Others Vs. Union of India and Others1,
particularly paragraph 11 thereof.
4.
The stand taken on behalf of the
petitioner is contested by Sri Ashok Khare,
learned Senior Advocate assisted by Sri Vikas
Budhwar, Advocate on behalf of the
respondent nos.5 to 8 and 10 as well as on
behalf of respondent no.9. Sri Ashok Khare
submitted before us that once the respondent
nos.5 to 8 and 10 had exercised their option in
terms of the order of the High Court and they
had been paid salary by the Central University
of Allahabad between the period 2006-2008,
they shall be deemed to have been recognized
as University Teachers/declared as Teachers of
the University, within the meaning of Section 7
sub clause (vi) and (vii) respectively of Act No.
26 of 2005. It is explained that once the
respondents are recognized as University
Teachers/declared
as
Teachers
of
the
University, they would be treated to be as the
Teachers of the Medical College which was
declared to be a University College under
Statute 30(4) of the First Statute of the
University and even if vide Notification dated
16.07.2008 the Statute 14.1(iv), and Statute 14
(vi) as well as Statute 30(iv) have been
repealed, their rights as Teachers of the
Medical College would be saved in view of
Section 6 of the General Clauses Act.
5. It is his case that the rights of the
respondents as Teachers of the Medical
College stands established/crystallized with
the payment of salary from the Central
University, subsequent to the exercise of their
option for being treated/declared as Teachers
of the Central University. Sri Khare has also
referred to the definition of the University
recognized Teachers as contained in Section 3
sub clause (z) as well as to the definition of
University College as contained in Section 3
sub clause (x). For ready reference, the
sections relied upon i.e. 3(x), 3(z), 7(vi) and
7(vii) are being quoted herein below:-
"3(x) "University College" means a
college or an institution maintained by the
University or admitted to the privileges of
the University as a Faculty;
3(z) "University recognized teacher"
means a teacher recognized by the University
for imparting instruction and conducting
research in a college or institution admitted to
the privileges of the University;
7.The university shall have the
following powers, namely:-
7(vi)
to
recognize
persons
as
University recognized teachers;
7(vii) to declare persons working in
any other University or organization, a
teachers of the University;"
3 All] Moti Lal Nehru Medical College Teachers Asso. Allahabad & Anr. Vs. State of U.P. & Ors. 1405
6. It is also the case of Sri Khare that
even otherwise the rights of the respondents
are protected under Section 5 sub clause (d) of
the Act No. 26 of 2005. The State
Government is, therefore, justified in passing
the order dated 29.01.2009 wherein it has
been held that the respondents stand absorbed
as Teachers of the Medical College and they
have lost their lien in the P.M.S. Cadre.
7. Sri Ashok Khare also submitted before
us that petitioner no. 1 was an unregistered
society at the time the writ petition was filed,
therefore, it is not maintainable. So far as the
petitioner no. 2 is concerned, it is stated that he is
working in a different department and can have
no objection to the continuance of respondent
nos.5 to 8 and 10, as they are working in
different department. Therefore, the writ petition
at their behest be dismissed.
8.
Sri Khare also referred to the
judgment passed in writ petition no. 53934 of
2013 in the case of Dr. Sidharth (respondent
no. 10 before us) Vs. State of U.P. and
Another2 wherein a Division Bench of this
Court has provided parity in the matter of
absorption, at par with Dr. D. C. Srivastava,
who is respondent no.5 to the present
petition. It is, therefore, submitted that the
right of absorption which has been
recognized by the Division Bench in favour
of Dr. Sidharth cannot be undone by this
Court while hearing collateral proceedings.
9. The Standing Counsel on behalf of the
State Authorities has supported the order of the
State Government dated 29.01.2009, for the
reasons which have been recorded therein.
10. The court has been informed that
a set of written submissions has been filed
but these written submissions were not
asked for by this Court nor were placed
before the Court, till the judgment was
delivered in the open Court. We are,
therefore, confining ourselves to whatever
has been argued before us only.
11.
Having heard counsel for the
parties and examined the records available,
we are of the opinion that following issues
require determination by this Court in the
present petition:-
a) Whether the writ petition, as
presented before us, is maintainable or
not?
b) Whether under the Act No.26 of
2005 any option from any Teacher of the
College mentioned in the Act or Statute
was required to be called for or not?
c) Can the High Court, by means of an
order passed in writ, create a right for the
Members of P.M.S. Cadre for opting for the
service of the Central University, without their
being any Statutory provision in that regard,
and what would be the effect of such an interim
order once the writ petition is finally decided ?
d) Whether in the facts of the case there
has been any order by the University
accepting the option, if any, exercised, and
whether the alleged right of respondent nos.5
to 8 and 10 was inchoate on the date the
Notification for 16.07.2008 for repealing of
the Statute has been enforced ?
e) Whether Section 6 of the General
Clauses Act would save such inchoate rights,
and whether the intention, which follows
from the repeal of the Statutes 14.1(iv),
14(vi) and 30 (iv) of the First Statutes of the
Allahabad University necessarily, lead to a
situation that respondent nos.5 to 8 and 10
must be deemed to have been continued on
deputation in the Medical College at
Allahabad, and that no rights of absorption
have been granted in their favour ?
12.
So far as the issue of
maintainability of the present writ petition is
1406
 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned we may record that the petitioner
no.1 which was an unregistered society has
since been registered during the pendency of
writ petition on 16.11.2009. The writ petition
as on date is on behalf of a registered
Association, and therefore, the objection of
Sri Khare is, therefore, more technical than
substantive in nature. We are further of the
opinion that both the Association as well as
the petitioner no.2 have every right to see
that persons who are not Members of the
Cadre of U.P. State Medical College
Teachers Rules, 1990 are not inducted
through back door into the said Cadre of
Teachers. They have locus to challenge the
action of the State Government which leads
to such illegal induction inasmuch as every
Member of the Cadre has a right to ensure
that the Cadre contains only those persons
who are legally appointed into the Cadre and
not strangers having no right to enter the
Cadre under the relevant service rules. For all
the said reasons, the first objection raised on
behalf of Sri Khare stands rejected.
13. So far as issue nos. (b) to (e) are
concerned, they are inextricably interwoven
with each other and are therefore being taken
up together. We have perused Act No. 26 of
2005, as well as Statutes framed therein,
which were included as Appendix 1 to the
Act itself. We find that there is no provision
in the Act or the statute asking for any option
from any Teacher working in any College
covered by Statute 30 for being absorbed in
the employment of Central University.
14. In our opinion the High Court can
not create a new source for being inducted as
Teacher of the Central University, by
permitting those who were working on
deputation in the Medical College at
Allahabad to submit their option for such
absorption as Members of the Central
University. But we may not dilate any further
on the said aspect in the matter, inasmuch as
even if such option could have been
exercised or has been exercised under orders
of this Court, we are of the opinion that no
indefeasible right was created for absorption
of respondent nos.5 to 8 and 10, merely by
exercise of such option, and by mere
payment of salary to them, during the period
the issue with regard to continuance of
Swarup Rani Nehru Hospital and Moti Lal
Nehru Medical College being University
Colleges was being agitated and contested by
the State Government. The matter was
engaging the attention of the Supreme Court.
At best, in our opinion, inchoate right in
respondent nos.5 to 8 and 10 was created
only for the purpose of making an
application for consideration of their claim
for being treated as Teachers of the
University, on the Medical College being
declared to be a University College, and
nothing beyond it. Such inchoate right in the
petitioner lost life with the issuance of
Notification dated 16.07.2008, when Statute
14 and Statute 30(iv) were amended and
declared to have been repealed.
15. We may also note that the option
as was exercised by respondent nos.5 to 8
and 10 was with reference to the interim
order of this Court dated 23.03.2007 passed
in Public Interest Litigation No. 32844 of
1997 as noticed above. The order of the
High Court itself records that the issue of
absorption shall be considered by the
Central University and State Government in
accordance with the Ordinances to be
framed by the University in this regard. It is,
thus, clear that the consideration of option
exercised by respondent nos.5 to 8 and 10
was dependent upon the Ordinances to be
framed by the University.
16.
It is nobody's case that any
Ordinance had been framed by the Allahabad
3 All] Moti Lal Nehru Medical College Teachers Asso. Allahabad & Anr. Vs. State of U.P. & Ors. 1407
University in the matter of absorption of
Teachers of Moti Lal Nehru Medical
College/respondent nos.5 to 8 and 10 at any
point of time either before the notification
dated 16th July, 2008 or subsequent thereto.
It is, thus, clear that absolutely no right was
created in the respondent nos.5 to 8 and 10
merely because submission of options under
the order of High Court, what to talk of
crystallized right.
17. We may record that Section 6 of the
General Clauses Act only saves such rights,
which get crystallized in favour of a person,
under the old provision, prior to its repeal.
Section 6 of the General Clauses Act does not
save inchoate rights. The legal position in that
regard has been settled by the Apex Court in
the case of M.S. Shivananda Vs. Karnataka
State Road Transport Corporation and
others3. Relevant paragraph nos. 13 to 16 of
the judgment are reproduced:-
"13. It is settled both on principle and
authority, that the mere right existing under
the repealed Ordinance, to take advantage of
the provisions of the repealed ordinance, is
not a right accrued. Sub-section (2) of
Section 31 of the Act was not intended to
preserve abstract rights conferred by the
repealed Ordinance. The legislature has the
competence to so re-structure the Ordinance
as to meet the exigencies of the situation
obtaining after the taking over of the
contract carriage services. It could re-enact
the Ordinance according to its original
terms, or amend or alter its provisions.
14. What were the 'things done' or
'action taken' under the repealed Ordinance ?
The High Court rightly observes that there
was neither anything done nor action taken
and, therefore, the petitioners did not acquire
any right to absorption under sub-clause (3)
to Clause. 20. The employees of the former
contract carriage operators in normal course
filled in the proforma giving their service
particulars and reported to duty. This was in
the mere 'hope or expectation' of acquiring a
right. The submission of these 'call reports' by
the employees did not subject the Corporation
to a corresponding statutory obligation to
absorb them in service. As a matter of fact,
nothing was done while the ordinance was in
force. The Act was published on March 12,
1976. On May 29, 1976, the Corporation sent
up proposals for equation of posts to be filled
in by the employees of the former contract
carriage operators. The meeting of the
Committee set up by the Government for
laying down the principles for equation of
posts and for determination of inter-se
seniority, met on June 2, 1976. The
Committee decided that even in the case of
helpers-cleaners, there should be a 'trade test'
and' the staff cleared by the Committee for the
posts of helper 'B', helper 'A' and assistant
artisans should be on the basis of their
technical competence, experience, ability etc.
The Committee also decided that all other
employees of contract carriage operators,
who were eligible for absorption, should be
interviewed by that Committee for the purpose
of absorption on the basis of experience,
ability, duties and responsibilities. These
norms were not laid down till June 2, 1976.
Till their actual absorption, the employees of
the erstwhile contract carriage operators had
only an inchoate right.
15. The distinction between what is,
and what is not a right preserved by the
provisions of Section 6 of the General
Clauses Act is often one of great fineness.
What is unaffected by the repeal of a statute
is a right acquired or accrued under it and
not a mere 'hope or expectation of', or
liberty to apply for, acquiring a right. In
Director of Public Works v. Ho Po Sang
(1961)2 ALL ER 721, 731 (PC) Lord
Morris speaking for the Privy Council,
observed:
1408
 INDIAN LAW REPORTS ALLAHABAD SERIES
"It may be, therefore, that under some
repealed enactment, a right has been given,
but that, in respect of it, some investigation
or legal proceeding is necessary. The right is
then unaffected and preserved. It will be
preserved even if a process of quantification
is necessary. But there is a manifest
distinction between an investigation in
respect of a right and an investigation which
is to decide whether some right should be or
should not be given. On a repeal, the former
is preserved by the Interpretation Act. The
latter is not." (Emphasis supplied)
It must be mentioned that the object of
Section 31(2) (i) is to preserve only the things
done and action taken under the repealed
Ordinance, and not the rights and privileges
acquired and accrued on the one side, and the
corresponding obligation or liability incurred
on the other side, so that if no right acquired
under the repealed ordinance was preserved,
there is no question of any liability being
enforced.
16. Further, it is significant to notice that
the saving clause that we are considering in
Section 31(2)(i) of the Act, saves things done
while the ordinance was in force; it does not
purport to preserve a right acquired under the
repealed ordinance. It is unlike the usual
saving clauses which preserve unaffected by
the repeal, not only things done under the
repealed enactment but also the rights
acquired thereunder. It is also clear that even
Section 6 of the General Clauses Act, the
applicability of which is excluded, is not
intended to preserve the abstract rights
conferred by the repealed Ordinance. It only
applies to specific rights given to an individual
upon the happening of one or other of the
events specified in the statute."
18. We may also examine the claim of
respondent nos.5 to 8 and 10 under Act No.26
of 2005 viz-a-viz Teachers of the University, as
well as the Teachers of the Degree Colleges
and other Colleges, which were earlier
affiliated college of the University of
Allahabad, prior to it being declared a Central
University. We find that Statute 14 provides for
the faculties of the University, Statute 14 (1)
and (iv) talks of the Faculty of Medicines while
Statute 14(vi) talks of the Departments which
are to be part of the Faculty of Medicines.
Statute 14 (iv) and 14 (vi) has since been
deleted. Similarly, we find that the Statute 30
declares the Institute of Inter-Disciplinary
Studies, Institute of Professional Studies and
the
National
Centre
of
Experimental
Mineralogy and Petrology to continue as
University
Institutions.
The
Centre
of
Behavioural and Cognitive Sciences has been
declared to be an independent Centre of the
University. The Institute of Correspondence
Courses and Continuing Education has been
declared
as
a temporary
self-financing
University Institute. The Moti Lal Nehru
Medical College and Swarup Rani Nehru
Hospital were declared to be a University
College under Statute 30 (iv) while the Govind
Ballabh
Pant
Social
Science
Institute,
Allahabad, the Harish Chandra Research
Institute of Mathematics and Mathematical
Physics, Allahabad and the Kamla Nehru
Postgraduate Medical Institute, Allahabad was
declared to be the constituent institutions of the
University, while 11 Degree Colleges were
declared as constituent colleges.
19. We may further record that Statute
30 (iv), which declares the Moti Lal Nehru
Medical College and Swarup Rani Nehru
Hospital, as University College, has since
been repealed. From the definition of
University College quoted above, it is clear
that only such College or Institution
maintained by the University, are entitled to
the privileges of the University.
20.
Once Moti Lal Nehru Medical
College and Swarup Rani Nehru Hospital
have been taken away from the Statute, they
3 All] Moti Lal Nehru Medical College Teachers Asso. Allahabad & Anr. Vs. State of U.P. & Ors. 1409
cease to be covered by the definition of
University
College,
as
University
of
Allahabad neither maintains it nor has
admitted it to the privileges of the University.
21.
It may be noted that University
recognized Teachers are defined under
Section 3(z). A power has been conferred
upon the University of Allahabad (Central
University)
to
recognize
persons
as
University
recognized
Teachers
under
Section 7(vi) and to declare persons working
in any other University or Organization as
Teachers of the University under Section
7(vii). It will be seen that the Acts and the
Statutes do not confer any power upon the
University to recognize a person as a Teacher
of any of the constituent Institutions of the
University or of the constituent Colleges of
the University as well as of the University
College itself. The power is confined to
recognition of a person as a University
recognized Teacher only.
22. Similarly, Section 7(vii) confers
a power upon the University to declare a
person who is working in any other
University or any other Institution as
University Teacher. We may record that
this Section also does not confer power
upon the University to recognize any
person as a Teacher of a constituent
college, as the recognition can only be as
a Teacher of the University.
23. We are recording this only for the
purpose that even if the entire case as set up
by respondent nos. 5 to 8 and 10 is accepted
on the face value that they be absorbed as the
Teachers of the University of Allahabad, then
such absorption would mean that they become
Teachers of the University and not Teachers
of the Medical College as is claimed by them.
The finding is in addition to the basic finding
that so far as respondent nos.5 to 8 and 10 are
concerned, they were never recognized as
Teachers of the University, nor they were
declared as Teachers of the University
College. There has been no recognition or
declaration as Teachers of the University in
respect of respondent nos.5 to 8 and 10 at any
point of time.
24. Mere payment of salary by Central
University for some period when the matter
was under consideration with regard to the
status of Medical College before the High
Court/Apex Court will not mean that
respondent nos.5 to 8 and 10 stand
declared/recognized as Teachers
of the
University or there has been a declaration in
their favour, as Teacher of the University.
25. The State Government appears to
have
been
completely
misread
and
misconstrued the provisions of Act No. 26 of
2005 and the First Statute framed thereunder
while dealing with exercise of option by
respondent no.5 to 8 and 10, for the
conclusion that they had lost lien under
P.M.S. Cadre, as they stood merged as the
Teachers of the Medical College at
Allahabad. There has been complete nonapplication of mind at the hands of the State
Government viz-a-viz the provisions of the
Allahabad University Act, 2005 and the First
Statute framed therein.
26. So far as the judgment in the case
of Dr. Sidharth is concerned, it proceeds on
the ground of parity to be provided to Dr.
Sidharth viz-a-viz Dr. D.C. Srivastava. Once
we have come to the conclusion that Dr.
D.C. Srivastava himself never got declared
as a Teacher of the University under Section
7(vii) of the Act No.26 of 1995, the question
of Dr. Sidharth being treated as a Teacher of
the University of Allahabad on account of
parity also does not survive. Even otherwise
the said judgment does not deal with the
issues, which have been raised before us on
1410
 INDIAN LAW REPORTS ALLAHABAD SERIES
behalf of the petitioner. The judgment is
binding only in respect of the issues raised,
contested and decided.
27.
This Court made pointed query
from the learned counsel for the petitioner as
to under which cadre respondent nos.5 to 8
and 10 would stand absorbed in terms of the
plea as set up before this Court. Sri Vikas
Budhwar, learned counsel for the respondents
made a specific statement before us that the
respondents would become member of the
cadre covered by Rules, 1990. In our opinion
such stand on behalf of respondent nos.5 to 8
and 10 is wholly misconceived. It will mean
that a separate Cadre of Teachers of the
Medical College at Allahabad has been
created for respondent nos.5 to 8 and 10
which Cadre would be different from the
Cadre of U.P. State Medical Colleges
Teachers Service Rules, 1990. This is not the
intention of the provisions of the Act No. 26
of 2005 or any other statutory provisions.
28. We further find force in the
submission advanced by counsel for the
petitioner that in view of provisions of the
U.P. State Medical Colleges Teachers
Service Rules, 1990, the respondents, who
were sent on deputation, could not be
absorbed in the service under any
provision of Rules, 1990. Undisputedly,
the service conditions of the State
Medical Colleges are governed by the
Uttar Pradesh Medical Colleges Teachers
Service Rules, 1990 framed under Article
309 of the Constitution of India. Definition
clause, as contained in Rule 3 of 1990 Rules,
defines members of the service, service, and
substantive appointment. Part 3 of the Rules
of 1990 provides for recruitment. Rule 5
provides for source of the recruitment. Under
the Rules of 1990, all posts of Assistant
Professor are to be filled by direct
recruitment, whereas posts of Associate
Professor and Professor are to be filled by
direct recruitment and by promotion. Rules
of
1990
do
not
provide
for
absorption/deputation
as
a
source
of
recruitment to the Cadre of Teachers of the
U.P. State Medical Colleges Teachers.
29. It has been settled that deputation is
one of the method of recruitment by the
Apex Court in the case of K. Narayanan Vs.
State Of Karnataka4. It is equally settled that
unless service rules specifically provide for
recruitment to be made by way of deputation,
it could not be resorted to for the purpose of
making recruitment to the service. Paragraph
11 of the judgment of the Apex Court in the
case of Arun Kumar (supra) is reproduced:-
"11. Before we proceed further, we may
make it clear that, in our judgment, we have
observed earlier that we do not find any
infirmity in the action of the State
Government in absorbing respondent no. 4 as
Deputy Superintendent of Police in Punjab
Police Service. However, there is a caveat.
According to us, strictly on interpretation of
the said 1959 Rules, there is no scope for
opening of a third mode of recruitment.
Deputation is not the source of recruitment
under the said 1959 Rules. It is only as an
exceptional case that respondent no. 4 was
given the benefit of absorption in Punjab
Police Service as Deputy Superintendent of
Police and we do not find any fault with that
exercise. It is the genuine exercise. However,
when her services are regularized by the State
not from 16.8.1993/17.8.1993, when she
stood appointed as a deputationist, but from
9.6.1989, when she was appointed as
Assistant Commandant in CRPF, then
infirmity in the action of the State
Government crept in. CRPF functions cannot
be compared with Punjab Police Service.
Apart from policing, an officer of Punjab
Police Service has to do the work of
3 All] Moti Lal Nehru Medical College Teachers Asso. Allahabad & Anr. Vs. State of U.P. & Ors. 1411
investigation of crime detection, which is not
within the purview of CRPF. A Deputy
Superintendent of Police in CRPF need not
have the knowledge of CrPC, IPC etc., which
an officer in Punjab Police Service needs to
possess. The Service Rules governing CRPF
are different from the Service Rules which
governed Punjab Police Service. Therefore,
even functionally, the two cadres are different.
In fact, respondent no. 4, Ms. Amrit Brar, has
not undergone training as contemplated under
the Punjab Police Service Rules.