Akhil Kumar Mittal vs Vice Chancellor, Meerut University and Others

S.P. Srivastava, J.—Sri Sarswati Vidyalaya Post Graduate College, Hapur is affiliated to Meerut University, Meerut. A substantive vacancy occurred in the post of Lecturer in the subject of Commerce in that institution, which was duly notified to the U.P. Higher Education Services commission no recommendation having been received from the Commission for a period of more than three months, the Committee of Management initiated proceedings to appoint ''teacher'' as against the said vacancy on ad hoc basis for which advertisement inviting applications was published on 7-12-1990. The Selection Committee constituted for the purpose of holding this selection included an expert nominee of the Vice Chancellor of the University concerned. In the select list prepared by the selection committee, the Appellant was placed at serial No. 1 while the Respondent No. 3 was pieced at serial No. 2 The Committee of Management however, decided not to accept the recommendation of the selection committee, vide its resolution dated 16-2-1991 and on a representation, the Vice Chancellor disagreed with the decision of the Committee of Management and passed an order dated 20th March, 1991. directing the committee of Management to appoint the Appellant, selected, who had been placed at serial No. 1, against the vacancy in question in accordance with the provisions contained in Section 16 of the U.P. Higher Education Services Commission Act.

The Respondent No. 3 who had been put at serial No. 2 in the select list challenged the aforesaid order passed by the Vice Chancellor by means of a writ petition which has given rise to the present appeal. This writ petition was allowed by a learned single Judge of this Court and the order passed by the Vice Chancellor was quashed holding that the right of management to make an ad-hoc appointment u/s 16 of the U.P. Higher Education Service Commission Act was not curtailed in any manner by the provisions contained u/s 31 of the State Universities Act and the procedure prescribed under the aforesaid provisions did not come in the picture at all while making an appointment envisaged u/s 16 of the U.P. Higher Education Service Commission Act, The learned Single Judge concluded that where the management refuses to accept the recommendation of the selection Committee, the Vice Chancellor can not impose his own will in the matter. The learned Single Judge found ample support for his view from the decision of this Court in the case of Madburi Chauhan v. District inspector of Schools 1980 UP LB EC 397 and in the case of Anil Kumar v. Vice Chancellor 1990 (2) DP LB EC 1228.

Feeling aggrieved, the selectee, whose name had been put at serial No. 1 in the select list referred to hereinbefore, has now come up In appeal challenging the judgment and order passed by the learned Single Judge seeking its reversal.

The learned Counsel for the Appellant has strenuously urged that an ad-hoc appointment contemplated u/s 16 of the U.P. Higher Education Services Commission Act, not being an appointment which requires to be made on the basis of the recommendation of the Commission, has to be treated as covered by the provisions contained u/s 31 of the State Universities Act and consequently, in the facts and circumstances of the present case, in view of the disagreement of the committee of Management with the recommendation of the selection committee, a reference to the Vice Chancellor lay and whose decision in the matter had to be treated as final as envisaged u/s 31(8)(b) of the State Universities Act. The learned Counsel for the Appellant heavily relied upon the said provision in his attempt to Justify the impugned order of the Vice Chancellor as being well within Jurisdiction.

The learned Counsel for the Respondents on the other hand has asserted that the clear provisions contained in the Difficulties Removal Order issued in accordance with Section 31-A of the U.P. Higher Education Service Commission Act read together with Section 30 of the said Act led to an inescapable conclusion that the provisions contained in Section 31 of the State Universities Act have no application at all to the facts and circumstances of the present case and consequently the decision of the learned Single Judge did not suffer from any such legal infirmity, which may call for an interference In this appeal.

We have given our thoughtful consideration to the rival contentions and arguments advanced by the learned Counsel for the parties and have carefully perused the relevant provisions of both the Acts, referred to above.

The U.P. Higher Education Service Commission Act, 1980, (U.P. Act No. 16 of 1980) which came into force from 3rd October, 1980 had the effect of putting a curb on the jurisdiction of an appointing authority of a ''college'' envisaged u/s 2(c) of the said Act in respect of making appointments as against any substantive vacancy in the post of a ''teacher'' in the College by providing that such an appointment could be made by the Management only on the recommendation of the Commission. This restriction envisaged u/s 12 of the Act was however, made subject to certain exceptions contemplated u/s 16, 31-A and 31-B of the U.P. Higher Education Services Commission Article Section 61 of the Act authorises the Management to make an appointment of a ''teacher'' even as against a substantive vacancy without the recommendation of the Commission for a limited period specified therein, provided the requistite conditions as contemplated in that provision were satisfied. The management was therefore left free to make such an appointment termed as ''ad-hoc'' appointment even if the appointee was not a recommendee of the Commissioner.

The only pre-requisite conditions which were to be satisfied for making an appointment envisaged u/s 16 of the Act which stand prescribed are that the appointee must possess the qualifications prescribed for the post and the appointment is granted after following the prescribed procedure. In exercise of the jurisdiction envisaged u/s 31-A of the U.P. Higher Education Services Commission Act, a difficulties removal order was issued on 11-12-1981 which laid down the procedure to be followed while appointing a teacher in exercise of a jurisdiction contemplated u/s 16 of the Act. That procedure required that appointment had to be made in consultation with an expert nominated by the Vice Chancellor of the University with which the college stood affiliated.

The question that arises for consideration in this appeal is as to whether the jurisdiction vested In the Committee of Management as envisaged u/s 16 of the U.P. Higher Education Services Commission Act is fettered by the procedural limitations prescribed u/s 31 of the State Universities Act specially those contemplated u/s 31(8)(b) and 31(11) thereof.

It may be noticed that Section 2(a) of the U.P. Higher Education Services Commission Act, 1980 is wide enough to cover the appointments envisaged u/s 16 of the Act in as much as these appointments ere also against the substantive vacancy. They however, can fall within the category of the appointments envisaged u/s 31(3) of the U.P. State Universities Act also. A perusal of the Section 31 of the U.P. State Universities Act indicates that read with relevant statutes it constitutes a complete and comprehensive code laying down the procedure for appointment of a teacher against both substantive as well as temporary appointment. These sub-sanative appointments however, can ha made only on the recommendations of a selection committee but Sub-Section 3 of Section 31 of the Act provides an exception hereunder management is empowered to make officiating appointment in leave vacancy of a duration of not more than ten months and in any other type of vacancy for a duration not exceeding six months without reference to the selection committee but in consultation with the expert nominated by the Vice Chancellor. The appointments envisaged u/s 16 of the U.P. Higher Education Services Commission Act, 1980 are in effect appointments for a short duration as is apparent from the fact that they cease on the happening of the event mentioned in Section 16(2)(a)(b)(c) which ever is earlier and in any case can not subsist beyond 30th June, following the date of appointment. Such appointments, though in the nature of appointments which are permissible even without a recommendation of the Selection Committee as contemplated u/s 31(3)(a) of the U.P State Universities Act may be for a duration in excess of the limit prescribed thereunder. However, a special procedure quite different from the procedure prescribed for such an appointment stands prescribed under the U.P. Higher Education Services Commission (Removal of Difficulties) Order, 1982 indicated hereinbefore. That being so in the presence of a special procedure for making such an appointment, the application of the procedure contemplated u/s 31 of the U.P. State Universities Act for filling a substantive vacancy stands absolutely ruled out by virtue of Section 30 of the U.P. Higher Education Services Commission Act, 1980, which provides as follows:

Act to have overriding effect the provisions of this Act, shall have effect notwithstanding to the contrary contained in the Uttar Pradesh State Universities Act, 1973 or the Statutes or Ordinances made thereunder.

In the facts and the circumstances of the case, It is apparent that the selection process under the provisions of the U.P. Higher Education Services Commission Act, 1980 read with the Difficulties Removal Order, issued under the provision contained thereunder is a special process and the non obstinate clause of Section 30 of the Act gives this special piracies an overriding effect and as such to the extent of inconsistency it has to prevail over the selection process as contemplated u/s 31 of the U.P. State Universities Act. Once the application of the selection process envisaged u/s 31 of the U.P. State Universities Act becomes inapplicable, the question of applying Section 31 (8)(b) or 31(11) of the said Act, to the appointments envisaged u/s 16 of the U.P. Higher Education Services Commission Act, 1980 cannot arise and stands necessarily/excluded.

It is therefore, obvious that Section 31(8)(b) of the State Universities Act cannot come to the rescue of the Appellant and the order passed by the Vice Chancellor cannot be upheld on its basis.

Learned Counsel for the Appellant has tried to urge that the word ''consultation'' as used in paragraph 3 of the U.P. Higher Education Services Commission (Removal of Difficulties) Order. 1982 has to be given a wide meaning and the committee of management was bound to abide by the advice of the expert nominee of the Vice Chancellor. In this connection, it has further been urged that while passing the order dated 20-3-1991, the Vice Chancellor was seeking: the enforcement of the recommendations of its nominee, which was fully justified. This contention is not at all acceptable The Apex Court in its decision in the case of Union of India (UOI) Vs. Sankalchand Himatlal Sheth and Another, has clearly held that ''consultation'' is different from ''consent''. The Hon''ble Supreme Court was quite emphatic while observing that two persons may confer but may not ''concur''. The contention of the learned Counsel that ''consultation'' may be equated and put at par with ''concurrence'', cannot therefore, be accepted. The learned Counsel for the Appellant has tried to support the order passed by the Vice Chancellor on the ground that Section 13(1)(a) and (4) of the U.P. State Universities Act confer a supervisory jurisdiction on the Vice Chancellor and he was folly competent to revise any order passed by any subordinate authority including the committee of Management of an affiliated college. This contention is totally misconceived. In the present case, the committee of Management had taken the action exercising its jurisdiction which stood secured in its favour under the provisions contained in the U.P. Higher Education Services Commission Act. 1980 and the U.P. Higher Education Services Commission (Removal of Difficulties) Order 1982 passed thereunder had an overriding effect over the provisions contained in the U.P. State Universities Act. The Jurisdiction secured under the provisions of the U.P. Higher Education Services Commission Act, 1980 could not be deemed to have been curbed by the provisions contained in the U.P. State Universities Act in view of the U.P. Act No. 16 of 1980 being a special Act particularly considering the effect of Section 30 thereof.

14 It should not be lost sight of that what persuaded the legislature to make such an overriding provision is a matter of legislative policy, the wisdom of which can not be scanned by this Court.

We have examined the Judgment passed by the learned Single Judge with care and are inclined to agree with the reasons mentioned therein-We are of the considered opinion that No. exception could be taken to the judgment under challenge.

In view of our conclusions Indicated hereinbefore, this appeal is dismissed.

However, there shall be No. order as to cost.