Decided on April 12,1994

Amrit Chandra Barkotoky Appellant
Assam Agricultural University And Four Ors. Respondents


J.N. Sarma, J. - (1.)THIS application under Article 226 of the Constitution of India has been filed for the following reliefs:
(i) To declare Clause 2 of the statute framed under the Assam Agricultural University Act, 1968 as illegal, unconstitutional and void.

(ii) To quash the impugned order dated 2.1.93 (Annexure -I) passed by the Registrar, Assam Agricultural University.

(2.)THE brief facts are as follows:
That the Petitioner was serving as a Divisional Accountant in the Assam State Electricity Board from November, 1960 to 1969. In the year 1969, the Petitioner joined the Assam Agricultural University (hereinafter called the AAU, Jorhat) as Asstt, Accounts Officer and since then he has been serving in the University in various capacities as a regular employee. On 12.5.72, the Petitioner was promoted to the post of Asstt. Accounts Officer. The Petitioner was also allowed to hold the charge of the post of Deputy Comptroller and he has been serving as a Deputy Comptroller since then and has been confirmed in the post. The Assam Agricultural University Act, 1968 is the Act to manage the affairs of the University. Section 10 of the Act provides for the constitution of the board of management. The powers and duties of the board are laid down by Section 11(1) Section 41 of the Act provides us follows:

Subject to the provisions of this Act, the Statutes may provide for all or any of the following matters, namely:

Sub -Section 9 provides for the manner of appointment and selection of officers other than the Vice -Chancellor and their powers and terms and conditions of service.

Section 42 provides how statutes are to be made in the exercise of this power the first statute under the Assam Agricultural University Act, 1968 (hereinafter called Act) was made. This statute was published in the Assam Gazette on 26.6.70 and it was made by the Vice -Chancellor with the approval of the Chancellor. Chapter III provides for the designation, manner of appointment, powers, functions and duties of the Officers of the University. Clause 2 of the statute provides as follows:

The procedure prescribed for the appointment of Deans of College and the Director of Research Extension Education Post -Graduate Studies etc. shall also be followed (Except in the case of the Comptroller) in making these appointments except that the Selection Committee will consist of the following:

(i) Vice -Chancellor -Chairman.

(ii) An expert nominated by the Vice -Chancellor.

(iii) A member nominated by the Board.

The Comptroller shall be either from the Finance Department of the State Government or from the A.G.'s Office and will be appointed on deputation term. (The Registrar shall be a person with considerable administrative experience from the State Government and will be appointed on deputation terms).

It is pertinent to note that the Comptroller is the Officer of the University within the meaning of Section 17 of the Act. Section 23(1) says as follows:

The Comptroller shall be whole -time officer of the University and shall be appointed by the Vice -Chancellor subject to the approval of the Board.

(3.)SECTION 2 and 4 of the Section 23 specified the functions of the Comptroller. It is contended that this clause 2 is beyond the Rule making power and it is unconstitutional. In this writ application it is prayed that this clause may be struck down and Shri A.C. Borbors learned Counsel for the Petitioner urges the following points:
(i) Provision of Clause 2 is not clear as to:

(a) What grade of officers from the Finance Deptt. or A.G.'s Office are to be brought in:

(b) No specific period of deputation mentioned and it provides for deputation for indefinite and uncertain period, unguided and unrestricted power is vested by the impugned provision.

(ii) Impugned clause is discriminatory and based on unreasonable classification without any nexus with the objects of the A.A.U. Act.:

(a) It outrightly excludes equal or even more qualified/experienced person;

(b) It sticks out promotional avenues of the existing officers;

(c) It deprives equality and equal opportunities in the matter of public employment. Hence, violates Articles 14 and 16 of the Constitution.

(iii) Favourable treatment meted out to officers serving in the A.G.'s Office/Finance Deptt. to the prejudice of long service officers of the A.A.U.

(iv) It imparts stagnancy in service career. It results in chain stagnancy for officers of the A.A.U. serving in various posts.

(v) It curtails incentives, reduces efficiency and hampers moral, This is also not the object sought to be achieved by the Act.

(vi) It allows to "pick and choose" any -one from the Finance Deptt. and the A.G.'s Office and as such arbitrary.

(vii) The University being a statutory body it offers Public and not Private employment.

The provision is unreasonable, unfair and unjust.

(viii) There is no rational or tangible basis. No intelligible differentia for the purported exclusion. Impugned clause is beyond the purview of the Act.

(ix) The impugned clause is ultravirus the Act - Particularly Section 23(1) and Sec. 41 of the A.A.U. Act.

(x) Neither Section 21 nor Sec. 41 empowers the V.C. to make such provision.

(xi) There is no exigencies whatsover for such provision.

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