ASHOK KUMAR DAS & ORS.versusUNIVERSITY OF BURDWAN & ORS.

                     [2010] 3 S.C.R. 429


             ASHOK KUMAR DAS & ORS.                            A
                            v.
           UNIVERSITY OF BURDWAN & ORS.
             (Civil Appeal No. 392 of 2004)

                     MARCH 16, 2010
                                                               B
     [MARKANDEY KATJU AND A.K. PATNAIK, JJ.]

      Burdwan University Act, 1981-s. 21(xiii)-Promotions to
 different grades of non-teaching staff-Resolution of the
 Execution Council of the University as regard criteria for C
promotion-Challenge to-Direction by Division Bench of
 High Court to the University to send proposal in the
 Resolution to State Government for approval-Subsequently,
approval of Resolution by State Government-On appeal,
held: As per the wordings of s. 21(xiii), 'with the approval of D
 the State Government', Executive Council of the University
could determine the terms and conditions of services of the
staff and obtain approval of State Government subsequent/y-
in case, State Government did not grant approval subsequent
to the Resolution, action taken on the basis thereof, would be E
invalid-On facts, promotions to different grades of non-
tEiaching staff on the basis of the Resolution are valid since
the Resolution was approved by State Government.

     The promotions to different grades of non-teaching
staff of the University were being done on the basis. of       F
seniority. On 26.06.1995, the Executive Council of the
University resolved that the criteria of Seniority-cum-
Efficiency as enunciated in the Government Order dated
17 .01.1985 would be followed for promotion. The
appellants filed the writ petition challenging the             G
Resolution of the Executive Council of the University. The
Resolution was set aside and the University was directed
to re-frame the guidelines for promotion in accordance
with the Government Order to give promotions to the
                           429                                 H
     430      SUPREME COURT REPORTS             [2010] 3 S.C.R.

A candidates. The E>ivision Bench of the High Court
  directed the University to send the proposal in the said
  Resolution to the State Government for its approval and
  in case of approval, the University would undertake the
  exercise of promotion of their staff. The direction was
B carried out and the State Government by its order dated
  10.01.2002 approved the said Resolution. Hence the
  present appeal.

           Dismissing the appeal, the Court

C        HELD: The words used in s. 21 (xiii) of the Burdwan
     University Act, 1981 are not "with the permission of the
     State Government" nor "with the prior approval of the
     Stage Government", but "with the approval of the State
    Government". If the words used were "with the
D permission of the State Government", then without the
    permission of the State Government the Executive
    Couqcil of the University could not determine the terms
  . and conditions of service of non-teaching staff. Similarly,
    if words used were "with the prior. approval of the State
E Government", the Executive Council of the University
    could not determine the terms and conditions of service
    of the non-teaching staff without .first obtaining the··
    approval to the State Government. But since the words
    used are "with the approval of the State Government", the
F ~xecutive Council of the University could determine the
    terms and conditions of service of non-teaching staff.
    Similarly, if the words used were "with the prior approval
    of the State Government", the Executive Council of the
    University could 11ot determine the terms and conditions
G . of service of the non-teaching staff without first obtaining·
    the approval of the State Government. But since the
    w.01d.!> use,A are "with the approval of the State
    Gove·rf11Qent""~ :the Executive Council of the University
    could determine the terms and conditions of service of
    the non-teaching staff and obtain the approval of the
H-
      ASHOK KUMAR DAS & ORS. v. UNIVERSITY OF                 431
                BURDWAN & ORS.
  State Government subsequently and in case the State ·A
  Government did not grant approval subsequently, any
  action taken on the basis of the deci.sion of the Executive
  Council of the University would be invalid and not
  c1therwise. Therefore, the promotions to different grades
  of non-teaching staff made by the University on the basis B
  c1f the principles laid down in the Resolution of the·
  E:xecutive Council of the University adopted on.
  26.06.1995 are valid as the Resolution has been approved
. by the State Government on 10.10.2002. [Paras 10 and 11)
  [436-F-H; 437-A-D]                                          C

      T.R. Kapur & Ors. v. State of Haryana & Ors. AIR 1987
·SC 415; Prem Kumar Verma & Anr. v. Union of India & Ors.
 (1998) 5 SCC 457; Union of India v. S.S. Uppal & Anr. (1996)
 2 SCC 168; Ku/want Kumar Sood v. State of H.P. & Anr.
 (2005) 10 SCC 670; High Court of Delhi & Anr. Etc. v. AK.          D
 Mahajan & Ors. (2009) 12 SCC 62; UP. Avas Evam Vikas
 Parishad & Anr. v. Friends Co-operative Housing Society Ltd.
 6~ Anr. (1995) Supp (3) SCC 456; High Court of Judicature
 for Rajasthan v. P.P. Singh & Anr. (2003) 4 SCC 239, reffered
 ~.                                                                 E
       Black's Law Dictionary (Fifth Edition), referred to.

                       Case Law Reference:
   AIR 1987 SC 415                Referred to.    Para 4            F
   (1998) 5 sec 457               Referred to     Para 4
   (1996) 2 sec 168               Referred to     Para 4
   (2005) 1o sec 670              Referred to     Para 4
                                                       '.           G
   (2009) 12 sec 62               Referred to     Para 4
   (1995) Supp (3) sec 456        Referred to     Para 6, 8, 9
   (2003) 4 sec 239               Referred to     Para 6, 9
                                                                    H
         432      SUPREME COURT REPORTS                 [2010] 3 S.C.R.


     A      ·: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 392
         of 2004.

             From the Judgment & Order dated 8.8.2002 of the High
         Court of Calcutta in Appeal being MAT No. 2604 of 2001.
     B       Ranjan Mukherjee, Raja Chatterjee, Avik Chatterjee, •
         Sachin Das, G.S. Chatterjee for the Appellant.

             Nagendra Rai, Azim H. Laskar, Monish Sen, Smarhar,
         Shantanu Sagar, Abhijit Sengupta, T.C. Sharma, Neelam
     c   Sharma, Aasheem Chandra, Joydeep Mazumdar, Vinod
         Kumar, Chiraranjan for the Respondent.

               The Judgment of the Court was delivered by

               A.K. PATNAIK, J. 1. This is an appeal against the
     D judgment and order dated 08.08.2002 of the Division Bench
         of the High Court of Calcutta in MAT No.2604 of 2001 and
         CAN No.1624 of 2001 filed by some members of the non-
         teaching staff of the University of Burdwan [For short 'the
         University'].
     E
               2. The facts very briefly are that promotions to different
         grades of non-teaching staff of the Burdwan University were
         being done on the basis of seniority. On 26.06.1995, the
         Executive Council of the University considered the principle of
         promotion as enunciated in the Government Order dated
     F 17.10.1985 and resolved"ttiat criteria of 'Seniority-cum-
         Efficiency!. as enunciated in"'"the aforesaid Government Order
         dated 17.10.1985 will be followed for promotion to different
         grades of non-teaching staff of the University. The Executive
         Council of the University in its meeting on 26.06.1995 also
     G resolved the manner in which the efficiency of a candidate for
         promotion will be considered along with seniority for promotions
       . to difterent grades. For the first promotion, efficiency of the
         employee was to be determined on the basis of recording in
         ~is personal file and the report received from the Controlling
     H
''
   ASHOK KUMAR DAS & ORS. v. UNIVERSITY OF                   433
       BURDWAN & ORS. [A.K. PATNAIK, J.]
  Officer of the candidate; for tl'ie second promotion, 50%         A
  weightage will be given to efficiency, out of which 25% would
  be allotted for work performance and 25% would be allotted to
  a written test for ascertaining the subject competence of the
  candidate and for the third promotion, the efficiency was to be
  determined on the basis of recording in the personal file and     B
  the report of the Controlling Officer. The Resolution of the
· Executive Council of the University taken in its meeting on
  26.06.1995 was to be implemented with immediate effect.

       3. Aggrieved by the Resolution of the Executive Council C
 of the University, some of the appellants filed the Writ Petition
 being C.O. No.17139 (W) of 1995 and a learned Single Judge
 of the High Court of Calcutta allowed the writ petition in part
 and set aside the Resolution of the Executive Council of the
 University taken on 26.06.1995 and directed the University to
 re-frame its guidelines for promotion strictly in accordance with D
 the Government Order dated 17.10.1985 in the light of the.
 observations made in the judgment and to give promotion to
 the candidates on the basis of the Government Order dated
 17.10.1985 after re-framing the guidelines.
                                                                   E
       4. The University challenged the judgment of the learned
 Single Judge before the Division Bench of the High Court of
 Calcutta and the Division Bench held in the impugned judgment
 and order that under Section 21 (xiii) of the Burdwan University
 Act, 1981 the Executive Council of the University was F
 empowered to determine, with the approval of the State
 Government, the terms and conditions of service of non-
 teaching staff of Colleges other than Government Colleges, but
 no approval of the State Government had been taken to the
 Resolution of the Executive Council of the University adopted G
 in its meeting held on 26.06.1995. By the impugned judgment
 and order, the Division Bench of the High Court of Calcutta
 directed the University to send the proposal in the Resolution
 of the Executive Council of the University adopted on
 215.06.1995 to the State Government for its approval and further H
         434      SUPREME COURT REPORTS                [2010] 3 S.C.R.


     A directed that in case the State Government approves the
       proposal, the University will undertake the exercise of promotion
       of their staff. Pursuant to the impugned judgment and order of
       the Division Bench, the proposal was sent to the State
       Government and the State Government by its order dated
     B 10.10.2002 has approved the Resolution of the Executive
       Council of the University adopted on 26.06.1995.

               5. The contention raised before us by the learned counsel
       for the appellants was .that the Re.solution of the Executive
       Council of the University adopted o·n 26.06.1995 will be
     C effective only from 10.10.2002 when the State Government
       approved tbe Resolution and will not apply to any promotions
       made prior to 10.10.2002 because under Section 21 (xiii) of
       the Burdwan University Act, 1981 the Executive Council of the
       University could deterrnine the terms and conditions of the
     D service of the non-teaching staff of the Colleges other than
       Government Colleges with the approval of the State
       Government and not otherwise. Relying on the decisions of this
       Court in T. R. Kapur & Ors. v. State of Haryana & Ors. [AIR
       1987 SC 415], Prem Kumar Venna & Anr. v. Union of India
     E & Ors. [(1998) 5 SCC 457], Union of India v. S. S. Uppal &
       Anr. [(1996) 2 SCC 168], Ku/want Kumar Sood v. State of H.
       P. & Anr. [(2005) 10 SCC 670] and High Court of Delhi & Anr.,
       Etc. v. A. K. Mahajan & Ors. [(2009) 12 SCC 62], learned
       counsel for the appellants submitted that the Resolution of the
     F Executive Council of the University adopted on 26.06.1995 and
       approved by the State Government on 10.10.2002 cannot,
       therefore, apply to promotions to vacancies which have
       occurred prior to 10.10.2002. Learned counsel for the
..     lntervenois supported the aforesaid stand of the appellants .
     G
              6. Learned counsel for the respondents Nos. 1 to 3, on the
         other hand, submitted that Section 21 (xiii) used the expression
         "approval of the State Government" and not "prior approval of
         the State Government" and it has been held by this Court in U.
         P. Avas Evam Vikas Parishad & Anr. v. Friends Co-operative
     H
  ASHOK KUMAR DAS & ORS. v. UNIVERSITY OF                   435
      BURDWAN & ORS. [A.K. PATNAIK, J.]
Housing Society Ltd. & Anr. [(1995) Supp.(3) SCC 456] and A
High Court of Judicature for Rajasthan v. P. P. Singh & Anr.
[(2003) 4 SCC 239] that when an approval is required, an action
holds good and only if it is disapproved it loses its force. He
further submitted that promotions made on the basis of
F~esolution of the Executive .Council of the University adopted B
on 26.06.1995, therefore, hold g6od and· now that the State
Government has approved the Resolution of the Executive.
Council of the University adopted on 26.06.1995 by order dated
10.10.2002, the promotions made on the basis of the
Hesolution dated 26.06.1995 of the Executive Council of the c
University hold good and cannot be set aside by this Court.

      7. In Black's Law Dictionary (Fifth Edition), the word
"approval" has been explained thus: "the act of confirming,
ratifying, assenting, sanctioning, or consenting to some act or
t11ing done by another." Hence, approval to an act or decision      D
can also be subsequent to the act or decision.

    8. In U. P. Avas Evam Vikas Parishad (supra), this Court
made the distinction between permission, prior approval and
approval. Para 6 of the judgment is quoted hereinbelow:             E

    "6. This Court in Life Insurance Corpn. of India v. Escorts
    Ltd. [(1986) 1 sec 264], considering the distinction
    between "special permission" and "general permission",
    previous approval" or ''prior approval" in para 63 held that:
                                                                    F
    "We are conscious that the word 'prior' or 'previous' may
    be implied if the contextual situation or the object and
    design of the legislation demands it, we find no such
    compelling circumstances justifying reading ~ny such
    implication into Section 29(1) of the Act." Ordinarily, the
    difference between approval and permission is that in the       G
    first case the action holds good until it is disapproved,
    while in the other case it does not become effective until
    permission is obtained. But permission subsequently
    granted may validate the previous Act, it was stated in Lord
    Krishna Textiles Mills Ltd. v. Workmen [AIR 1961 SC             H
    436         SUPREME COURT REPORTS                 [2010] 3 S.C.R.


A         860], that the Management need not obtain the previous
          consent before taking any action. The requirement that the
          Management must obtain approval was distinguished from
          the requirement that it must obtain permission, of which
          mention is made in Section 33(1 )."
B
        9. Following the decision in U. P. Avas Evam Vikas
    Parishad (supra), this Court again held in High Court of
    Judicature for Rajasthan v. P. P. Singh & Ors. (supra) in para
    40:
c         "When an approval is required, an action holds good and
          only if it is disapproved it loses its force. Only when a
          permission is required, the decision does not become
          effective till permission is obtained. (See U.P. Avas Evam
          Vikas Parishad v. Friends Coop. Housing Society Ltd.)."
D
         10. Section 21 (xiii) of the Burdwan University Act, 1981
    is quoted herein below:-

          "21. Subject to the provisions of this Act, the Executive
          Council shall exercise the following powers and perform
E         the following functions:

          (i)    to (xii) ....................... .

          (xiii) to determine, with the approval of the State
          Government, the terms and conditions of service of
F
          Librarians and non-teaching staff."

          The words used in Section 21 (xiii) are not "with the
    permis~!on of the State Government" nor "with the prior approval
  of the State Government", but "with the approval of the State
G Government". If the words used were "with the permission of
  the State Government", then without the permission of the State
  Government the Executive Council of the University could not
  determine the terms and conditions of service of non-teaching
  staff. Similarly, if the words used were "with the prior approval
H of the State Government", the Executive Council of the
   ASHOK KUMAR DAS & ORS. v. UNIVERSITY OF                  437
       BURDWAN & ORS. [A.K. PATNAIK, J.]

  University could not determine the terms and conditions of       A
  service of the non-teaching staff without first obtaining the
  approval of the State Government. But since the _words used
  are "with the approval of the State Government", the Executive
- Council of the University could determine the terms and
  conditions of service of the non-teaching staff and obtain the   B
  approval of the State Government subsequently and in case the
  State Government did not grant approval subsequently, any
  action taken on the basis of the decision of the Executive
  Council of the University would be invalid and not otherwise.

     11. We, therefore, hold that promotions to different grades
                                                                   c -
of non-teaching staff made by the University on the basis of the
principles laid down in the Resolution of the Executive Council
of the University adopted on 26.06.1995 are valid as the
Resolution has been approved by the State Government on
10.10.2002. This appeal is without any merit aod is dismi~sed      D
with no order as to costs.

N.J.                                        Appeal dismissed.