1. The prayer in the present writ petition is to quash the advertisement No. 02/2017 dated 17.01.2017 qua the post of Section Officer to the extent it invites applications from the candidates other than the respondent University.
2. The grievance of the petitioners is that as per the Schedule III-A of the Maharshi Dayanand Saraswati University, Ajmer Recruitment and Promotion Rules for Non ? Teaching Employees, 1998, the source of recruitment for the post of Section Officer is 34% by direct recruitment from internal eligible employees and 66% by promotion. The Bikaner University has adopted the Statutes, Ordinances and Regulations of the M.D.S. University. Hence, the respondent ? University of Bikaner in its 27th meeting of Board of Management held on 16.07.2016 passed the Agenda No. 314 whereby it was decided to apply the rules of the State Government and to fill up the post of Office Assistant and Section Officer from eligible candidates 100% by way of promotion and in case, the eligible candidates are not available, the vacancy shall be filled by way of direct recruitment from outside the University.
3. The petitioners are aggrieved with the amendment vide which decision has been taken to allow candidates from outside the University to apply for the post of Section Officer. In pursuance to the said amendment, the respondent University issued an advertisement dated 17.01.2017 inviting applications for various posts including the post of Section Officer. A total of 07 posts of Section Officer were advertised and the qualification and eligibility for the said post is a graduate with minimum 10 years of service and at least 04 years experience as Assistant/Accountant and in the case of non-graduate, the minimum service required is 14 years. However, the experience as Assistant/Accountant is same i.e. 04 years. As per the instruction No. 06 of the advertisement, the post of Section Officer has been issued by inviting applications from the outside candidates apart from the internal eligible employees in view of the regulation passed by the University in its'' 27th meeting of the Board of Management held on 16.07.2016 vide Agenda No. 314.
4. While praying for setting aside the advertisement dated 17.01.2017 to the said extent vide which it invited applications from the candidates other than the respondent University for the post of Section Officer, learned counsel for the petitioners raised the following arguments :-
A. The said stipulation in the advertisement is not in accordance with the service rules which clearly provides in the note appended to the Schedule III-A of the Maharshi Dayanand Saraswati University, Ajmer Recruitment and Promotion Rules for Non ? Teaching Employees, 1998 that 34% of the posts of Section Officer, Assistant and U.D.C. shall be filled by direct recruitment from the internal eligible employees and the remaining 66% shall be filled by promotion.B. As per the service rules, the direct recruitment can also be made from the internal eligible employees. Hence, the University could not have been invited applications from outside candidates.C. The University has no authority or power to amend the rules.D. Even, if it is accepted that the University has power to amend the rules, the Schedule III-A under the Maharshi Dayanand Saraswati University, Ajmer Recruitment and Promotion Rules for Non ? Teaching Employees, 1998 is under the ordinance. The same could have only been amended by an ordinance and cannot be replaced by a regulation. The University has amended the same by way of a regulation, which is invalid.E. The State had denied the approval to appoint from outside vide Annexure-10 dated 02.01.2017. In spite of the same, the respondent University had gone ahead and issued a fresh advertisement dated 17.01.2017.
5. Reply has been filed. As per the reply, the Section 48 of the University of Bikaner Act, 2003, the University has transitory provisions. The answering University has not accepted the recruitment and promotion of the non-teaching employees rules of the Maharshi Dayanand Saraswati University verbatim. The petitioners have sought relief as per the Schedule III-A of the Rules for recruitment and promotion in Maharshi Dayanand University University, which is not applicable to the answering University in view of the Agenda No. 314 of the 27th meeting of the Board of Management wherein it has been decided and necessary orders have been passed that the post of Section Officer shall be filled through direct recruitment if eligible candidates are not available. It is further contended that the petitioners have accepted the regulations of the University, which are in their favour but the regulation which do not suit them are being opposed on the ground that the University has neither any power to amend the rules and nor the said rules have been amended in accordance with the procedure.
6. Learned counsel for the parties were heard at length.
7. The petitioners are aggrieved by the decision of the Board of Management of the respondent University taken in its 27th meeting held on 16.07.2016 vide Agenda No. 314. However, neither the same has been challenged nor there is any prayer to quash or set aside the same. The writ petition could have been dismissed on this ground alone. However, learned counsel for the petitioners insisted that the same was a legal issue and he can raise the same at any time and hence, the Court must decide the same. This Court, therefore, proceeded to hear the matter.
8. The contention that the respondent ? University has no authority or power to amend the rules cannot be sustained. Section 48 of the University of Bikaner Act 2003 has transitory provisions. According to which, only those provisions of Maharshi Dayanand Saraswati University Act, 1987 shall be accepted which would not be inconsistent to the provisions of the University of Bikaner Act, 2003. Section 48 of the University of Bikaner Act, 2003 reads as under :-
"48. Transitory provisions.-(1) All Statutes, Ordinances and Regulations made under the Maharshi Dayanand Saraswati University Act, 1987 (Act No. 38 of 1987) shall, in so far as they are not inconsistent with the provision of this Act, be deemed to have been made under this Act and shall continue to be in force until they are superseded or modified by the Statutes, Ordinances or Regulations made under this Act.(2) All notices and orders, made or issued by any authority under Maharshi Dayanand Saraswati University Act, 1987 (Act No. 38 of 1987) shall, in so far as they are not inconsistent with the provisions of this Act, be deemed to have been made or issued by the corresponding authority under this Act and shall continue to be in force until they are superseded or modified under this Act."From perusal of the above, it is evident as under :-(i) that only those Statues, Ordinances or Regulations have been adopted, which are not inconsistence.(ii) they will continue to be in force until they are superseded or modified under this Act.(iii) the above transitory provisions does not mention about adoption of the rules.Section 20(K) of the University of Bikaner Act, 2003 gives ample power to make Statutes, Ordinances and Regulations.The same reads thus :-"20. Duties and functions of the Board :-The duties and functions of the Board shall be as follows:-(a) to (j) .. xxx ...(k) to make Statutes, Ordinances and Regulations in the manner prescribed in this Act for smooth functioning of the University; and"
9. Similarly, Section 40 of the University of Bikaner Act, 2003 gives ample power to the University to make its'' own regulations. Sub-section (3) of Section 40 is reproduced below :-
"(3) The Board may direct the amendment, in such manner as it may specify, of any Regulations made under this section or the annulment thereof by any authority of the University."
10. It was in exercise of this power under Section 20(K) of the Act of 2003 that the respondent ? University went ahead and took a decision in its'' 27th meeting of the Board of Management held on 16.07.2016 that all the vacancies shall be filled 100% by way of promotion and only in case, the eligible candidates are not available that the posts shall be filled by direct recruitment from outside candidates.
11. At this stage, although, not a word has been mentioned in the petition, learned counsel for the petitioners submitted that even if it is accepted that the University had the authority to make amendment, then too, the said amendment could have only been brought by an ordinance and not by a regulation and the Schedule III-A under the Maharshi Dayanand Saraswati University, Ajmer Recruitment and Promotion Rules for Non ? Teaching Employees, which has been sought to be amended, is an ordinance. To support his argument, learned counsel for the petitioners has referred to the various ordinances of the Maharshi Dayanand Saraswati University, Ajmer governing the service conditions etc. of the University Teachers and Employees, 1998 to show that one of its contents is M.D.S. University, Ajmer Recruitment and Promotion Rules for Nonteaching Employees and the Schedule III-A with respect to the source of recruitment to the post of Section Officer showing 34% by direct recruitment and 66% by promotion is a part of the said rules. Hence, these rules have been made by way of ordinance. Thus, the Schedule III-A could have only been amended by an ordinance and not by a regulation.
12. However, this argument of the petitioners has to be rejected outright. There is a procedure provided both under the Maharshi Dayanand Saraswati University Act, 1987 as well as the University of Bikaner Act, 2003 for issuing an ordinance. Section 22 of the Maharshi Dayanand Saraswati University Act, 1987 deals with ''Ordinances of the University'', which is as under :-
"22. Ordinance of the University -(1) The Vice- Chancellor shall have power, at any time after the appointed day, to make, with the previous approval of the Government, the first ordinance of the University.(2) Any amendment to the Ordinance (by adding, deleting or in any other manner) may be made, at any time after the first Ordinances are made under sub-section (1), by the Board in such manner as may be prescribed.(3) The Ordinance of the University may, subject to the provision of this Act and the Statutes be made for all or any of the following matters, namely: -(a) The course of study, admission or enrolment of students, fee, qualification or conditions requisite for any degree, diploma, certificate or fellowship;(b) The conduct of examinations including the appointments of examiners and their terms and conditions;(c) Management of colleges, institutions, centers or other agencies or bodies run by or admitted to the privilege of the University :(d) The conditions for residing in any hostel or other place of residence run or maintained by the University, the levying of charges therefore and other related matters;(e) The recognition and supervision of hostels not run or maintained by the University;(f) The matter related to emoluments and conditions of service of officers, teachers and employees, their service records, tutorial instructions, allowances including traveling and daily allowances payable to teachers and employees; and(g) Any other matter required by the statutes to be dealt by or under the Ordinance of the University."
13. Whereas, Schedule III-A of the M.D.S. University, Ajmer Recruitment and Promotion Rules for Non ? Teaching Employees is in accordance with Rule 22 and 32(1) of the Maharshi Dayanand Saraswati University Rules for recruitment and promotion and under the heading of "short title and commencement" of these rules, it is specifically stated that the said rules would come into force with effect from the date of approval of the BOM i.e. Board of Management. In case, the rules had been made in pursuance to an ordinance, the final authority would have been the Vice-chancellor as per sub- Section (1) of Section 22. Moreover, in case of an amendment, it is, in any case, by the Board. Thus, even as per the subsection (2) of Section 22 of the Maharshi Dayanand Saraswati University Act, 1987, for the purpose of amendment of the ordinance, if at all, the Board of Management is the only authority. Admittedly, looking from any angle, even if for the sake of argument, it is considered that it is an ordinance, then too, for the purpose of amendment, the Board of Management is the concerned authority.
14. Further, as per sub-Section (3) of Section 22, the subjects for which the ordinance can be made, have been detailed. There is no mention with respect to the subject of recruitment and promotion. Therefore, it is not acceptable that the said rules with respect to the recruitment and promotion were by way of an ordinance.
15. Moreover, the booklet of ordinances specifically states that it contains "ordinances related to conditions of service and emoluments, code of conduct, leave of the teachers, officers and employees, their service records and allowances including travelling and daily allowances payable to them under reference to" and it does not make any reference to the recruitment and promotion rules for non-teaching staff.
16. In view of the above discussion, this Court is of the opinion that the rules pertaining to recruitment and promotion are not by way of Ordinance. Even if they are held to be so, the Board of Management is the final authority for the purpose of amendment as per Rule 22(2) of the Maharshi Dayanand Saraswati University Act, 1987 and in the present case, the same has been amended by the Board of Management.
17. The writ petition is, accordingly, dismissed being devoid of merit.
