GANESH PRASAD MISRA Vs. STATE OF U P

JUDGEMENT

(1.) THIS writ petition has been filed for quashing the orders dated 26th June, 2004 and 30th June, 2004 passed by the Smt. Bhagirathi Trust Adarsh Sanskrit Mahavidyalaya Chunar, Mirzapur (hereinafter referred to as the 'college') and for a direction upon the respondents not to interfere with the working of the petitioner as the Principal of the College run by the aforesaid Trust.

(2.) THE College is a Post Graduate College affiliated to the Sampoornanand Vishwavidyalaya (hereinafter referred to as the 'university') and is governed by the provisions of the U. P. State Universities Act, 1973 and the First Statutes framed thereunder. THE petitioner was working as the Principal of the College and the age of superannuation was 60 years. THE date of birth of the petitioner is 5th June, 1944 and, therefore, he was to retire on 30th June, 2004 under Statute 16. 24 of the said Statutes of the University. This is what had been intimated to the petitioner by the communication dated 30th June, 2004. THE contention of the petitioner is that the Government Order dated 4th February, 2004 was issued under the provisions of Section 50 (6) of the U. P. State Universities Act, 1973 (hereinafter referred to as the 'act') by which a direction was issued to the Universities to amend the Statutes of the University by enhancing the age of superannuation from 60 years to 62 years within a period of 30 days and, therefore, in terms of the said Government Order, the petitioner should not be made to retire on 30th June, 2004 but he should be continued up to 30th June, 2006.

(3.) FORTUNATELY for us, a contention similar to that raised in this petition was resolved by this Court in Writ Petition No. 34649 of 2004, Prof. (Smt.) Adesh Agarwal v. Din Dayal Upadhyay Gorakhpur University, Gorakhpur & Ors. , which was decided on 12-5-2005. The Court observed as follows : "however, before proceeding further with the matter we may deal with the legal arguments raised on behalf of the University. According to the University an amendment made by the Executive Council in the Statutes would not require the assent of the Chancellor in cases where the amendment has been made pursuant to the directions issued by the State Government requiring the Executive Council to amend the Statutes. In support of this plea the University has placed reliance upon a decision dated 23- 2-1999 of a Division Bench of this Court in Writ Petition No. 32515 of 1995, Dr. Anirudh Prasad v. Chancellor, University of Gorakhpur & Ors. . We have examined the decision carefully. For appreciating why the said decision is no longer good law, it is necessary to examine the history of Section 50 of the Act. Under the said Section 50 (as originally enacted) the first Statutes were made by the State Government and could be amended by the State Government till 31-1-1987. This date of 31-1-1987 was subsequently extended to 31-12-1990. But after that last date, i. e. , 31-12-1990 that power of amendment stood transferred to the Executive Council and the State Government after that date had no power to amend the Statutes. However, by a further amendment made in 1994 new sub-sections (6) and (7) were added to Section 50 of the Act. The said 1994 amendment provided an exception to the earlier scheme of Section 50, by again granting power to the State Government to require the Executive Council to amend the Statutes and, failing obedience by the Executive Council of such direction, to amend the Statutes directly. That is why the sub-section (6) of Section 50 opens with the words "notwithstanding anything in the foregoing sub- section. . . . . . " This reason for the said opening words needed to be stated here because these opening words have been heavily relied upon in the decision of `dr. Anirudh Prasad' (supra ). In 1998 a further amendment was made by the U. P. Act No. 9 of 1998 whereby it was provided that if the Executive Council failed to amend the Statutes according to the directions of the State Government the State Government could itself amend the Statutes of any State University but only with the assent of the Chancellor. Thus, we find that if the Executive Council of its own wants to make any amendment to the First Statutes, the assent of the Chancellor is required. And, as the law in Section 50 (6) stands after 1998 amendment, if the State Government decides to amend the Statutes directly, due to failure of Executive Council to abide the direction for amendment, again the assent of the Chancellor is required. Simply put the contention of the University is that "neither University nor Government can amend without consent of Chancellor, but University can amend on request of Government without the consent of Chancellor. " In view of this situation we are unable to accept the submission of the University that an amendment to the First Statutes made by the Executive Council pursuant to the suggestion or direction of the State Government under Section 50 (6) does not require the assent of the Chancellor because quite obviously such an interpretation would be contrary to the legislative intent of the Chancellor having the final say in such matters. "