Dr. Bhika Lal Jain and Others vs University of Rajasthan and Others

N.C. Sharma, J.—This writ petition under Article. 226 of the Constitution of India has been filed by Dr Bhika Lal Jain, Dr. Shiv Sharma, Dr. Sudhakar Misra and Dr. T.N. Bhardwaj praying that the selection of Dr G.S. Nathawat non-petitioner No. 4, as Professor in Botany by the Selection Committee constituted for the purpose, may be declared as void and further the said non-petitioner No. 4 may be removed from the office of Professor of Botany in the University of Rajasthan. A direction is further sought that non-petitioner No. 5 whose came finds place in the reserve list, has no right to be appointed on the post of Professor, Department of Botany, after the retirement of non-petitioner No. 4.

Facts as alleged in the writ petition are that Dr. Bhika Lal Jain, petitioner No. 1 is working as Associate Professor in the University of Rajas-then since July. 1978 and be asserts that be is fully accomplished and duly qualified for being considered for appointment to the post of Professor in the University. At present he is said to be the senior-most Reader in the Department of Botany in the University of Rajasthan. Dr. Shiv Sbarma has passed his M Sc. in Botany in 1952 from the Government College, Ajmer and did his Ph.D. from the University of Rajasthan in the year 1973. He states that he has considerable research and teaching experience and is associated with a number of State Government and Central Government bodies. He also fulfils the requisite qualifications for being considered and appointed to the post of Professor in the Department of Botany. The same thing is alleged by Dr. Sudhakar Misra, petitioner No. 3 with regard to his academic qualifications, teaching and research experience and attainments. Dr. T.N. Bhardwaji s an Associate Professor in the Department of Botany in the University of Rajas-than for quite a long time.

By its Notification No. 1/89/T dated April 15, 1989, the University of Rajasthan, invited applications, inter alia, for the post of Professor in the Department of Botany so as to reach the office of the University on or before April 5. 1989 in the prescribed from. In response to the said advertisement, the petitioners also submitted their applications for the post of professor in Botany. Besides them, non Petitioner No. 4 and three other persons named Dr. Uma Kant, Dr. Ashwani Kumar and Dr. P.C. Jain also submitted their applications for the considering there for the post of professor in Botany. The Selection Committee as constituted u/s 5 of the Rajasthan University Teachers & Officers (Selection for Appointment) Act No. 18 of 1974 (for short here in after the ''Act'') held the interview on 20-6-1982 at 3 p.m. Petitioners-non-petitioner No. 4. Dr. Uma Kant and Dr. Ashwani Kumar. Appeared for interview before the selection Committee. The Selection Committee selected Dr. G.S. Nathawat non-petitioner No. 4 for the post of professor in Botany and bad also prepared a reserve list. The selection made by the selection Committee was approved by the University syndicate in its meeting held on June 21, 1989. It is also mentioned that the Selection Committee also prepared a reserve list as required by Section 6(4) of the Act and in that reserve list, the name of Dr. Uma Kant non-petitioner No. 5, was mentioned.

4 It may be mentioned that Dr. G.S. Nathawat retired on 30th Sept. 1989 and after his retirement Dr. Umakant, non-petitioner No. 5 was appointed as professor in Botany by the University of Rajasthan as his name finds place in the reserve list. The petitioners have challenged the selection and appointment of Dr. G.S. Nathawat as Professor of Botany on the ground that the selection Committee was not constituted in accordance with the Act. The petitioners have further pleaded that the purpose of preparing reserve list is to appoint the persons mentioned therein case the selected person. Does join for some reason or the other. But, once selected person joins the post, the reserve list. itself and the person whose name finds place as the reserve list cannot be appointed in place of the person who had been selected or appointed even on retirement of such person. Non-petitioner No. 5 had been impleaded as a party to the writ petition on his making an application for the purpose and the petitioners have contended that on the retirement of Dr. G.S. Nathawat, non-petitioner No. 5 cannot even be appointed on the basis that his name finds place in the reserve list prepared by the Selection Committee u/s C(4) of the Act, which selected non-petitioner No. 4 for the post of Professor in Botany.

Reply to the writ petition has been filed both by non-petitioners No. 1 and 4. So far the University of Rajasthan, non-petitioner No. 1, is concerned, its reply is that the Selection Committee was properly constituted and the penal of experts once prepared remains inforce.until a new penal is made. In connection with the membership of the Selection Committee it is also stated that the constitution of the selection. He cannot questioned and any defect in its constitution would not invalidated the selection with regard to the reserve list, the University of Rajasthan has relied upon a resolution of the Syndicate of the University passed in a meeting held on 3rd December. 1983, whereby the validity of the reserve list was extended from 6 to 12 months. It is also pleaded that if any vacancy arises within the validity period of the reason list, whether that vacancy arises on account of non-joining of the selected person, or by retirement, or by creation of extra post, or for any reason then the whole process of selection need not be gone through therein by the University and persons whose name finds gone in the reserve list can be appointed. It is stated that this has always been the practice of the University. Non-petitioner No. 5 has also taken more or less the same stand as taken by the University of Rajasthan. Non-petitioner No. 5 has cited instances when in the past appointments were made from out of the reserve list even if the vacancy had arisen subsequent to the selection already made.

I have heard the learned Counsels for the parties at length. So far as the question relating to defect in the constitution of the Selection Committee is concerned, the contention of the learned Counsel for the petitioners is that the applications for the post of professor in the Department of Botany were invited on April 15, 1989. The selection Committee interviewed the candidated on June 20, 1989 and it recommended the name of non-petitioner No. 4 for appointment invited that the academic council of the University in its together with a reserve list. It is, meeting held on December 4, 1985 had considered the revised panel of experts for selection of teachers, inter alia in the subjeet of Botany for the session 1985-86 and onwards as required by Section 5(1)(v) of the Act. According to the petitioners, this panel remained in force upto the academic session 1988 and the revised panel of experts for the academic session 1988-89 and onward was framed by the academic council in its meeting held on June 28, 1988 on the recommendation of the staff council by the Department of Botany. This revised panel has been filed alongwith the writ petitions as Annexure 8 that was urged by Mr. S.M. Mehta appearing for the petitioners that the Dean of Faculty of Science was not representation so far as the experts were concerned. They are already selected out of the obsolete list of panels which was prepared for the academic Sessions 1985-86 and onwards which stood superseded by the fresh panel of experts prepared for (he Academic Sessions 1988-89. The petitioners learnt about it on reopening of the University after summer vacation on July 21, 1989.

Section 3 (1) of the Act in unambigous terms provides that not with standing any thing contained in the relevant law, as form the commencement of he Act, no teacher and no officer in any University in Rajasthan shall be appointed except en the recommendation of the Selection Committee constituted u/s 5 Sub-section (2) of this Section states that save as otherwise provided in subSection (3), every appointment of a teacher of an officer in any University made in contravention of Sub-section (1) shall be null and void Sub-section (3) relaxed this rigour only for stop gap arrangement for a period not exceeding one year. The provision relating to constitution, of the selection Committee finds place in Section 5 of the Act. Clause (v) of subSection (1) of Section , 5 states that selection Committee, inter alia will consist of such other persons as members specified in column 2 of the Schedule for the selection of the teachers and officers mentioned in column 1 thereof. Entry of Sr. No. 2 of the first Schedule enumerates the persons we would, inter alia be member of the selection Committee along with others for the selection to the post of Professor. These other persons are Dean or, as the case may be Chairman of the faculty if he is a Professor Head of the Department concerned if be is a professor, otherwise the senior most Professor in the depart ment and three experts not connected with the University concerned having special knowledge in the subject in which a Professor is to be apppointed to be nominated by the Vice Chancellor of the University concerned out of a Panel of name recommended by the Academic Council of such University. Explanation-II appended at the Schedule states that the three experts to be nominated by the Vice Chancellor of the University shall be Chosen by him on the advice of a committee constituting of a member of the Rajasthan Public Service Commission to be nominated by the State Government after consultation with the Chairman of the said commission the eminent educationalist nominated under clause (iii) of Sub-section (1) of Section 5 and the member of (be Syndicate nominated under clause (iv) of the said Sub-section of (be said Section and the said committee shall from out of the panel of names recommended by the Academic Council recommend to the Vice-Chancellor of the University concerned names of at least twelve experts for each selection committee which shall be in order of priority.

It may here be noted that in relation to certain members of the selection committee specified, there is duration of the membership as specified in rub clauses (ii), (iii) and (iv) of Sub-section (1) of Section 5 of the Act. For an eminent educationalist it is provided that he will be nominated by the Chancellor for a period of one year. The member of the Syndicate to be-nominated by the State Government has also to be for a period of one year...for the three experts specified in clause (iii) against entry "Professor" in the first Schedule and also of experts pertaining to other posts; no such period is specified. All that is provided for in Sub-section (3) of Section 5 of the Act is that no person shall be eligible to be nominated as an expert on any selection committee in any one year if he has been a member of any two selection committees during the course of the same year. This only implies that if an expert has sat as a member of two selection committees constituted for the purpose of selection. Sub-section (3) of Section 5 of the Act by no stretch fixes any term for the experts appointed by the Vice Chancellor out of the panel of names recommended by the Academic council of such University. Consequently, therefore, the experts appointed by nomination by the Vice Chancellor out of the panel of names recommended so it continue to remain expert till the Vice Chancellor appoints other persons as experts out of fresh panel of names recommended by the Acadimic Council of the University in the manner provided in explanation-It appended to the First Schedule. It is, therefore, wrong for the petitioner to plead and contend that merely because a revised panel experts had been framed by the Academic Council in its meeting held on June 28, 1988, the panel of experts out of which experts were appointed by the Vice Chancellor previously during the Acedemic Sessions 1985-86 become obsolete. It has not at all on pleaded and, it is not the case of the petitioner that out of revised panel of experts submitted by the Academic Council during the Academic Session 1988-89 the Vice Chancellor had appointed by nomination other experts out of the said panel. Until and unless the Vice Chancellor had appointed by nomination other experts, his old appointment of experts continues. The submission an behalf of the University of Rajasthan is correct that the panel prepared for the Academic session 1985-86 was the standing panel and since no fresh experts have nominated by the Vice Chancellor, the old panel continues. So far as the Dean of the Faculty is concerned, there was vacancy of the post. Apert from that, Section 6(1) provides that the quorum required for the meeting of the Selection Committee constituted u/s 5 shall not be less than five, out of which at least to shall be the experts, if the selection it to be made for the post of professor. It is not the case of the petitioners that the required quorum was not present during the selection. The first contention advanced by the learned Counsel for the petitioners has, therefore no force in it and is negatived.

I shall next deal with regard to the nature scope and effect of the reserve list prepared by the Selection Committee u/s 6(4) of the Act. It is not in dispute that the selection Committee bad recommended Dr. GS Nathawat, non-petitioner No. 4 for appointment to the post of Professor of Botany bad Dr. Nathawat bad been againted in purtiance of its recommendations and he stated as Professor in Botany in the University from June, 21, 1989 till his retirement on September 30, 1989. The name of Dr. Uma Kant (non-petitioner No. 5) was on the reserve list which the selection Committee had prepared in pursuance of Section 6 (4) of the Act. The question that arises is whether the University of Rajasthan on the retirement of Dr G.S. Nathawat could appoint Dr. Uma Kant, non-petitioner No. 5 on the ground that his name was in the reserve list.

As already stated, Section 3(1) of the Act starts with a non-obstante clause while it provides that cot with standing any thing contained in tike relevant law (which expression means an enactment of the Rajasthan State Legislature establishing a University in Rajasthan and includes statute, ordinance, by-law, rules notification or orders made there under), no teacher and no officer of the University of Rajasthan can be appointed except on recommendation of the selection Committee constituted u/s 5 Great emphasis and force is given to Sub-section (1) of Section 3 by Sub-section (2) by providing that save as otherwise provided in Sub-section (3), every appointment of a teacher in any University made in contravention of Sub-section (1) shall be unll and void. The expression "appointed" in Sub-section (1) shall mean appointed initially It is very pertinent to note that Sub-section (1) of Section 5 of the Act, provides that for every selection of a teach or of an officer in a University, there shall be constituted a committee consisting of persons mentioned in that Sub-section The words, "For every selection" are very pertinent ant they clearly indicate while read with Section 3(1) and (2) that for every selection list a teacher in a University, a Selection Committee.... To be constituted and no appointment of a teacher in a University can be made, unless for that selection a selection committee is constituted and the selection recommends the person for appointment as teacher. Section 12 (1) of the Act proved that the provisions of this Act shall have overriding effect not with standing any thing contained in the relevant law. It is true that the Syndicate of the University concerned could make rules for carrying out the provisions of the Act, but it is well settled that the rules cannot be inconsistent with the Act. Section 6(4) of the Act states that the selection committee, while making its recommendations to the Syndicate under subSection (2) shall prepare a list of candidates selection by it in order of merit and shall further a reserve list in the same order and to the extent of 50% of the vancancies in the post of teachers or officers for which was the selection committee finalised under Sub-section (1) Section 5 and shall forward the main list and the reserve list along with its recommendations to the Syndicate. Again, in Sub-section (4) of Section 6 of the Act, the expression "for which the selection committee was constituted under sub Section (1) of Section 5" are very important. Therefore, when Section 3 of the Act is read with Section 5 & 6(4) of the Act and with particular emphasis on the expression "for every selection" in Sub-section 0) of Section 5 "and the expression" for which the selection committee was constituted under Sub-section (1) of Section 5", they leave no room for doubt that the reserve list is only meant for a particular vacancy of the post of teacher in the University for the selection of which the Selection Committee was constituted. The reserve list can only be utilised to fill up the post for which the selection committee was constituted. To illustrate my view further, it may be mentioned that cases may arise where dispute selection of a particular candidate by the Selection Committee; and despite its recommendations for appointment of that person to the Syndicate, the person concerned may die before appointment, or may not join. In such contigency, the person named in the reserve list, which is sent to the Syndicate along with primary list is to be appointed But, if the person selected by the Selection Committee and recommended for appointment to the Syndicate, on his appointment joins the post, the reserve list exhausts itself completely. If a future vacancy arises in relation to any post of teacher and that vacancy has to be filled in by appointment of Professor, 8 fresh selection committee in accordance with Section 5 of the Act read with Schedule will have to be constituted Consequently, non-petitioner No 5 Uma Kant cannot he appointed as Professor of Botany on the retirement of Dr. G.S. Nathawat simply on the basis that his name was included in the reserve list which was prepared by the Selection Committee during the meeting in which selection of non-petitioner No. 4 was made by it.

Mr. Paras Kuhad appearing on behalf of the University of Rajasthan referred to two resolutions passed by the Syndicate of the University. The first resolution was passed on 1st August, 1976 and the syndicate resolved that wherever a selection Committee recommends ''Reserve List of candidates and recommendation is accepted by the Syndicate, the said reserve list shall be effective for a period of six months or till the date on which was person(s) duly appointed join whichever is earlier, in other words the reserve list shall become infructuous as soon as all the duly appointed candidates join and it shall in no case remain valid for a period exceeding six months. This resolution of the Syndicate dated August 1, 1976 is more in consuance with the interpretation of Section 6(4) of the Act, which I have placed. However, Mr. Paras Kuhad pointed out that this resolution dated August 1,1976 was superseded by another resolution dated July 10, 1978 when Mr. V.P. Tyagi was Vice Chancellor. By resolution dated July 10, 1978, the Syndicate resolved, interalia, that on the vacancies caused with its the cadre during six months of the approval of the recommendations, the candidate found suitable and placed in the reserve list be appointed in the order of priority given by the Selection Committee. This resolution of the Syndicate is quite inconsistent and contrary to the provisions contained in Section 3, 5(1) and 6(4) of the Act. The Act will over-ride such inconsistent resolution which the Syndicate had no comptency what so ever to pass.

Lastly, Mr. Paras Kuhad placed reliance upon a Single Bench decision of this in S.B. Civil Writ Petition No. 683/1978, Dr. M.C. Gupta v. University of Rajasthan and Ors, decided on September 21-10-1989. I have carefully gone through this judgment. Suffice it to state that in this case no law was laid down with regard to the interpretation to be placed on Section 3, 5(1) & 6(4) of the Act pertaining to the purpose and life of the reserve list. The decision in Dr. M.C Gupta''s case was solely with regard to the interpretation of the language of the resolution of the syndicate dated July 10, 1978, referred to the above If the resolution of Syndicate dated July 10, 1978 is interpreted as it stand''s, there is no quarrel with the manner in which it was interpreted in Dr. M.C. Gupta''s case. How ever, before the learned Single Judge neither an interpretation was sought on the above mentioned provisions of the Act nor he interpreted this provision, and, therefore, the decision in Dr. M.C Gupta''s case (Supra) does not help the respondents. I am of the opinion that no advantage can be taken of the reserve list in any future appointment on the post of Professor in Botany.

In view of my above findings this writ petition is partly allowed and respondent Nos. 1 & 2 are herby commanded to remove Dr. Uma Kant appointed as Professor of Botany in the University of Rajasthan on the basis of his name being on the aforesaid reserve list and this direction be complied with within four weeks of this order.

In the circumstance of the case, the patties are left to bear their own costs.