Hari Shanker vs Vice-Chancellor,Agra University,Agra and Others

R. A. Sharma, J.—Sri Varshney Degree College, Aligarh (hereinafter referred to as the College), which is affiliated to Agra University (hereinafter referred to as the University) invited applications, vide advertisement published on 25th, 26th and 27th October, 1987, for appointment of an ad hoc Lecturer in the department of Military Science. However, no appointment could be made pursuant to the said advertisement and the vacancy was readvertised. Again no appointment was made and the vacancy was again advertised on 13th, 14th and 15th October, 1989. Both Sri Hari Shankar and Sri Pramod Kumar Singh applied in pursuance of the above advertisement. The Selection Committee consisting of four persons including an expert nominated by the Vice Chancellor, was constituted in order to select the candidate for the ad hoc appointment. The expert selected Sri Promod Kumar Singh and placed him at serial No. 1, but other three members did not agree with the expert and have selected Sri Hari Shankar alone and rejected the name of Sri Pramod Kumar Singh on the ground that he does cot have requisite minimum qualifications for the appointment. The Selection Committee by majority of 3 to 1 recommended the name of Sri Hari Shankar only and sent its recommendation to the Committee of Management of the College. The Committee of Management vide its resolution dated 28121989 accepted the said recommendation and sent the name of Sri Hari Shanker to the ViceChancellor for his approval. The ViceChancellor, however, approved the name of Sri Pramod Kumar Singh for appointment and the Secretary of the College issued an appointment letter dated 1311990 to Sri Pramod Kumar Singh. Sri Hari Shanker challenged the appointment of Sri Pramod Kumar Singh by filing a writ petition No. 6403 of 1990 and an interim order dated 1431990 was granted by this court in his favour.

After his appointment as ad hoc Lecturer Sri Pramod Kumar Singh sought the regularisation of his service under Section 31C of the U. P. Higher Education Service Commission Act, 1980 but this prayer was, however, rejected by the Committee of Management on 2361990 on the ground that he is not eligible for appointment to that post. Sri Pramod Kumar Singh thereafter, filed the writ petition No. 26208 of 1992 before this Court challenging the above order, rejecting his claim for regularisation.

Sri Hari Shankar filed another wrij petition No 7440 of 1991 for a writ of mandamus directing the respondents to pay him the salary of the post of Lecturer in Military Science. Further prayer, not to recognise Sri Pramod Kumar Singh as Lecturer of Military Science and not to pay him the salary, has also been made.

In January 1991 the U. P. Higher Education Service Commission (hereinafter referred to as the Commission) selected the candidates for substantive appointment as Lecturer in Military Science in the College. Sri Pramod Kumar Singh filed a writ petition No. 3701 of 1991 challenging the said selection. This court has granted interim order dated 721991 in his favour.

Parties have exchanged their affidavits and we have heard the learned counsel for the parties.

Learned counsel for Sri Hari Shankar has challenged the order of ViceChancellor, approving the name of Sri Pramod Kumar Singh for appointment as ad hoc Lecturer and the letter of appointment issued by the Secretary, on four grounds, viz. (i) Sri Pramod Kumar Singh was not qualified for being appointed as a Lecturer ; (ii) ViceChancellor could not have approved the name of Sri Pramod Kumar Singh in the absence of his selection by the Selection Committee and the approval/recommendation by the Committee of Management of the College ; ,(iii) For appointment of ad hoc^ Lecturer under Section 16 of the Act, the approval of the ViceChancellor is not required and the appointment has to be made only on the basis of the resolution of the Committee of Management of the College ; and (iv) Sri Pramod Kumar Singh was not appointed by the Committee of Management but by its Secretary who has no such power learned counsel for Sri Pramod Kumar Singh, apart irom disputing the above contentions, has also made the following submissions :

"(1) Sri Pramod Kumar Singh was exempted and/or deemed to have been exempted from the minimum qualifications ?

(2) Writ petition filed by Sri Hari Shankar is liable to be dismissed in view of the finding recorded by this court in its judgment in the contempt jurisdiction ; and

(3) The statutes framed under the U. P. State Universities Act, 1973 (hereinafter referred to as the Universities Act) prescribed the minimum qualifications for appointment as Lecturer, are ultra vires.

Provisions for appointment and conditions of service of teachers of the Universities and the Degree Colleges are contained in Chapter VI consisting of Sections 31 to 36 of the Universities Act. Section 31 has laid down the procedure for selection of the teachers through a Selection Committee. After the enactment of the U. P. Higher Education Service Commission Act, 1980 (hereinafter referred to as the Act) no appointment in Degree Colleges can be made by the management except on the recommendation of the Commission. Section 16 of the Act contains the provisions for appointment of ad hoc teachers against the vacancies which have been notified to the Commission by the Management and the Commission has failed to recommend the names of suitable candidates within certain period.

Sri Pramod Kumar Singh was appointed as ad hoc Lecturer under Section 16 of the Act. Under Section 16 only a person having the prescribed qualifications can be appointed. Chapter XI of the first statutes of Agra University prescribes the minimum qualifications for appointment of a Lecturer. These statutes were amended in 1989, changing some of the qualifications. There is dispute between the learned counsel for the parties on the question as to which of the two sets of the qualifications i.e. those in force in the year 1987 or those which were introduced by amendment in 1989, will apply to the present case. According to the learned counsel for Sri Hari Shankar the qualifications prescribed by the statutes as amended in the year 1989 are relevant, because the post was advertised in 1989. But according to the learned counsel for Sri Pramod Kumar Singh the qualifications as contained in the statute in 1987 would be relevant because the post in question was advertised for the first time in the year 1987 although no appointment pursuant thereto was made and the post was readvertised in 1989. It is not necessary to go into this controversy because Sri Pramod Kumar Singh neither has the minimum qualifications as prescribed by the statutes which were in force in 1987 nor is he qualified according to the statutes as amended in. 1989. Statute 11.13 before its amendment in 1989, which prescribed the minimum qualifications for appointment of Lecturers in the College, is as follows :

"11.13. (1) In the case of any College affiliated to the University, the following shall be the minimum qualifications for the post of a Lecturer in the Faculties of Arts, Commerce and Science, namely :

(a) An M. Phil, degree or a recognised degree beyond the Master''s level or published work indicating the capacity of the candidate for independent research work ; and

(b) Consistently good academic record, with at least first or high second class Master''s degree or an equivalent degree of a foreign University, in a relevant subject."

Clause (6)(b) of the said statute which has defined the "consistently good academic record" is as under :

"(6) For the purpose of this Statute

(b) the expression "consistently good academic record" in relation to Faculty of Education or Faculty of Law or other Faculties shall have the same meaning as given to it in subclause (b) or subclause ^c) or subclause (d) of Clause (6) of Statute 11.01, as the case may be."

Clause (6)(b) has assigned the same meaning to the expression "consistently good academic record" as given to it in Clause (6) of Statute 11.01. Subclause (d) of Clause (6) of Statute 11.01, being relevant, is reproduced below :

"(6)(d) A candidate (other than a candidate for Lectureship in the Faculty of Education and the Faculty of Law) having obtained either an average of 55 per cent marks in the two examinations prior to Master''s degree, that is to say Intermediate and Bachelor''s degree examination (irrespective of the marks obtained in any of the two examinations), or 50 per cent marks in each of the two examinations separately is said to have consistently good academic record."

In order to have "consistently good academic record" a candidate must have either an average of 55 per cent marks in the two examinations prior to Master''s degree, that is to say, Intermediate and Bachelor''s degree examinations or 50 per cent marks in each of the two examinations separately. The academic qualifications of Sri Pramod Kumar Singh are as under :

M.Phil

M.A. 60.5 per cent

B.A. 52.25 per cent

Intermediate 45.20 per cent

Sri Pramod Kumar Singh did not have an average of 55 per cent marks in the two examinations prior to Master''s degree, namely, B. A. and Intermediate. He also did not have 50 per cent marks in each of the said two examinations separately, because he was having 45.20 per cent marks only in the Intermediate examination. He was thus not having consistently good academic record, which is one of the minimum qualifications for the appointment of a Lecturer. He was, therefore, ineligible for the appointment as Lecturer in the College under the Statutes, as were in force in 1987. He was also not qualified for appointment as a Lecturer on the basis of the qualifications prescribed by the statutes after amendment in 1982. Statute 11.13(1) as amended in 1989 is as under :

"11.13(1). In the case of any College affiliated with the University the minimum qualifications for the post of Lecturer in the Faculties of Arts, Agriculture, Commerce, Science and Home Science shall be Master''s degree or an equivalent degree of a foreign University in the .relevant subject with at least 55 per cent marks or its equivalent grade and consistently good academic record."

"Consistently good academic record" has been defined by Clause (5) of the said statute, which is reproduced below : j

"(5) For the purposes of this Statute the expression "consistently good academic record" in relation to the Faculty of Education or Faculty of Law or other Faculties shall have the same meaning as given to it in subclause (a) or subclause (b) or subclause (c) of Clause (5) of Statute 11.01, as the case may be."

Under the above clause the expression "consistently good academic record" has been assigned the same meaning as has been given to it in Clause (5) of Statute 11.01. Clause (5)(a) of Statute 11.01, being relevant, is reproduced below :

"(5)(a). A candidate (other than a candidate for Lectureship in the Faculties of Education and Law) having obtained either 55 per cent marks in Bachelor''s degree examination and second class in Intermediate examination or 50 per cent marks in each of the two examinations separately is said to have consistently good academic record."

Under the above clause a candidate in order to have consistently good academic record must have either 55 per cent marks in Bachelor''s degree examination and second class in Intermediate examination or 50 per cent marks in each of the two examinations separately. In the instant case Sri Pramod Kumar Singh had less than 55 per cent marks in Bachelor''s degree examinations. He also did not have 50 per cent marks in each of the two examinations (Bachelor''s degree and Intermediate) separately, because he was having only 45.20 per cent marks in the Intermediate examination. He was thus not qualified. Even in paragraph 5 of the counteraffidavit sworn by Sri Nand Ram Verma on behalf of the ViceChancellor of the University, it has been admitted that Sri Pramod Kumar Singh, who was respondent No. 4 in the writ petition No. 6403 of 1990 was unqualified for appointment. Being not qualified he could not have been appointed as Lecturer in the College. The first contention of the learned counsel for Sri Hari Shanker, therefore, has to be accepted.

Here one of the contentions raised by the learned counsel for Sri Pramod Kumar Singh regarding relaxation of minimum qualifications may also be considered. The contention is that Sri Pramod Kumar, Singh was granted and/or shall be deemed to have been granted exemption from the minimum qualifications. Reliance, in this connection, is placed on Clauses (4) and (5) of Statute 11.13 as applicable in 1987, which are reproduced below :

"(4). If the Selection Committee is of the view that the research work of a candidate as evident either from his thesis or from his published work is of a very high standard it may relax any of the qualifications prescribed in subclause (b) of Clause (1), or subclause (b) of Clause (2), as the case may be.

(5). Where no candidate possessing the qualification prescribed in subclause (a) of Clause (1) or subclause (a) of Clause (2) id available or considered suitable, the college on the recommendations of the Selection Committee, may appoint a person possessing a consistently good academic record on the condition that he obtains such qualifications within five years of his appointment failing which he shall not be able to earn timber increments until he fulfils the requirements."

Under the said clause (4) the Selection Committee has been given power to relax the qualifications prescribed in subclause (b) of clause (1) or subclause (b) of clause (2), if the research work of a candidate is of very high standard. Subclause (b) of both the clauses (1) and (2) relate to "consistently good academic record". But power to relax those qualifications been given to the Selection Committee. In the instant case the Selection Committee has not granted any relaxation in favour of Si''i Pfamod Kumar Singh. On the other hand, it has by majority of 3 to 1 rejected the candidature of Sri Pramod Kumar Singh and recommended only the name of Sri Hari Shanker for appointment. Clause (4) is, therefore, not attracted. Clause (5) gives power to the College to appoint, on the recommendation of the Selection Committee, a person possessing consistently good academic record on the conditions that he obtains other qualifications referred to therein within five years of his appointment, provided no candidate possessing the qualifications prescribed in subclause (2) of clause (1) or subclause (a) of clause (2) is available or considered suitable. In the instant case, neither the Selection Committee has recommended the case of Sri Pramod Kumar Singh nor the Management of the College has forwarded his name. This clause is also not attracted. Sri Pramod Kumar Singh was, therefore, not granted any exemption/relaxation under any of the provisions of the Statutes. He cannot also be deemed to have been exempted from the minimum qualifications, because his candidature was expressly rejected by the Selection Committee by majority of 3 to 1 and his name was not recommended by the Committee of Management to the ViceChancellor for approval. The contention raised on behalf of Sri Pramod Kumar Singh is, therefore, rejected.

Second submission of the learned counsel for Sri Hari Shanker is also liable to be accepted. Section 16 of the Act does not prescribe procedure for appointment of ad hoc teacher. College authorities, however, followed the procedure as is laid down by Section 31(3)(a) of the Universities Act for making ad hoc appointment under Section 16 of the Act and such an appointment has to be made only on the basis of the decision of the Committee of Management. As there was no decision of the Committee of Management of the College for appointing Sri Pramod Kumar Singh, he could not have been appointed by the Secretary of the College, even with the approval of the ViceChancellor and only person who was entitled to be appointed was Sri Hari Shanker, regarding whom the recommendation of the Selection Committee was accepted by the Management of the College.

Before parting with the case it is necessary to deal with the submissions made by the learned counsel for Sri Pramod Kumar Singh. We have already rejected his first contention while dealing with the first submission of the learned counsel for Sri Hari Shanker. Second contention raised on his behalf also deserves rejection, because we do not find any finding regarding filing of the false affidavit by Sri Hari Shanker in support of his writ petition, recorded by the learned Judge in his judgment given in the contempt jurisdiction. His last contention is about the validity of the Statutes by which minimum qualifications have been prescribed for the appointment of Lecturer in the affiliated Colleges. In this connection the learned counsel has made two submissions, viz. (i) The qualifications prescribed by the Statutes and, contrary to the University Grants Commission Regulations, .1991 ; and (ii) the deletion of requirement of the research degree like D, Phil and M. Phil from the Statutes in 1989, is arbitrary. In support of temporary/ad hoc appointment of the teachers, although following such procedure for making ad hoc appointment under Section 16 of the Act is not required. Under the said provision the Management of the College can make temporary appointment in consultation with an expert nominated by the ViceChancellor of the University. Subsection (11) of Section 31, which is reproduced below, prohibits the appointment of a teacher in the College, unless prior approval of the ViceChancellor has been obtained.

"31(1 l)(a). No teacher recommended by the Selection Committee shall be appointed by the Management of an affiliated or associated College (other than a college maintained exclusively by the State Government) unless prior approval of the ViceChancellor has been obtained.

(b) The Management shall as soon as possible, after the meeting of the Selection Committee, submit the recommendations of the Committee, along with other relevant documents to the ViceChancellor for approval.

(c) The ViceChancellor, if he is satisfied that the candidate recommended by the Selection Committee does not possess the minimum qualifications or experience prescribed, or that the procedure laid down in the Act for the selection of the teacher has not been followed, shall convey to the Management his disapproval:

Provided that if the ViceChancellor does not convey his disapproval within a period of one month from the date of receipt of the document referred to in clause (b), or does not send to the .Management any intimation in connection therewith, he shall be deemed to have approved of the proposal."

Under the said provision the power of the ViceChancellor is confined only to approve or not to approve a candidate selected by the Selection Committee and recommended by the Committee of Management. He is bound to approve the candidate recommended by the Committee of Management of the College, unless such a candidate does not possess the minimum prescribed qualifications or experience or the procedure laid down by the Act for selection of teacher, has not been followed. He does not have the power to approve the name of a candidate who was neither selected by the Selection Committee nor was he recommended by the Committee of Management of the College for his approval. In case a candidate has been selected by the Selection Committee but the Management does not agree with the recommendation of the Selection Committee, the Management under subsection (8)(b) of Section 31 of the Universities Act, has to refer the matter to the ViceChancellor, alongwith reasons of such disagreement and the decision of the ViceChancellor has been declared to be final. In the instant case, the College Management has accepted the recommendation of the Selection Committee and, therefore, subsec. (8)(b) will not apply. The ViceChancellor could only approve or not to approve the name of Sri Hari Shanker. It was not. open to him to recommend the name of Sri Pramod Kumar Singh for appointment, because he was neither selected by the Selection Committee nor was his name recommended by the Management. In paragraph 9 of the counteraffidavit sworn by Sri Nand Ram Verma, filed on behalf of the ViceChancellor in writ petition No. 6403 of 1990 it has been admitted that Sri Pramod Kumar Singh was appointed without there being any resolution of the Management of the College. In paragraph 10 of the same counteraffidavit it has further been stated that the ViceChancellor has obtained concurrence of the Principal of the College before approving the name of Sri Pramod Kumar Singh for appointment. Neither the Act nor the Universities Act provide for approval of the name of a candidate by the ViceChancellor on the basis of concurrence of the Principal. The Universities Act requires the selection of a candidate by a Selection Committee and recommendation of such a candidate by the Management to the ViceChancellor for approval. ViceChancellor cannot by pass the Selection Committee and the Management of the College by approving the name of a candidate on the basis 6f concurrence of the Principal of the College. The ViceChancellor acted'' in complete disregard of the law in approving the name of Sri Pramod Kumar Singh for his appointment as ad hoc Lecturer. The order of the ViceChancellor approving the name of Sri Pramod Kumar Singh was thus wholly without jurisdiction and cannot be sustained.

The third and fourth submissions of the learned counsel for Sri Hari Shanker have also to be accepted, in view of the law laid down by a Division Bench of this Court in Km. Madhu Chauhan v. District Inspector of Schools, 1988 UPLBEC 397, wherein it was held that the ViceChancellor has no role to play in the first contention the learned counsel has placed reliance on the decision of Supreme Court in University of Delhi v. Raj Singh, JT 1994 (6) SC 1, in which the aforesaid University Grants Commission Regulation came up for consideration.

In the instant case, the selection was made in 1989 and the appointment was made in 1990, whereas the University Grants Commission Regulations were made in 1991. The second proviso to Regulation 2, which has also been quoted in the said decision of the Supreme Court, has expressly laid down that the said Regulations shall not apply to such cases where selection has been made prior to their enforcement. The Regulations as such, will not be applicable to the selection made in the instant case.

As regards the other plea regarding deletion of the requirement of research degree, it may be observed that it is for the University to lay down the minimum qualification for appointment of the teachers. This Court normally does not interfere in such matters, unless a clear case is made out. The teachers who are selected for the affiliated Colleges are required to teach students of Bachelor''s and Master''s degree courses. While taking classes they are not only required to teach but are also required to control and maintain discipline amongst the students in the classes. For performing their duties effectively, over all good academic record and performance is necessary. When the educational standard is falling gradually, making appointment of teachers merely on the basis of research degree without good academic record may not be desirable. Qualification or ''consistently good academic record'' ensures the appointment of a fairly good teacher. The contention that for such teachers consistently good academic record is not required and what is required is only a research degree, cannot be accepted. We do not find any justification to interfere with the Statutes prescribing minimum qualifications for appointment of teachers.

As mentioned before, in the instant case the ViceChancellor while approving the name of Sri Pramod Kumar Singh has acted in completes defiance of law. He has done that which the law did not permit him to do. A person who was absolutely ineligible for .appointment and who was neither selected by the Selection Committee nor was his name recommended by the Management of the College, has been appointed at the instance of the ViceChancellor in complete disregard of law. On the other hand, the claim of Sri Hari Shanker, who was entitled to be appointed in view of the report of the Selection Committee and the decision of the Management of the College, has illegally been ignored.

In the instant case the eligibility has to be judged with reference to the qualifications prescribed by the Statutes as amended in 1989, because the applications for appointment were invited after 1989 amendment. Selection process starts with the advertisement of the vacancies and is required to be completed in accordance with law as it stood at its commencement,

In this connection reference may be made to P, Mahendran v. State of Karnataka, AIR 1990 SC 409. The earlier advertisement of the vacancy in 1987 is liable to be ignored, because pursuant thereto no appointment was made and the Management decided to readvertise the post. According to the eligibility qualifications as prescribed by the 1989 amendment, Sri Hari Shanker was fully qualified and he was rightly selected by the Selection Committee. The Committee of Management of the College was also justified to pass the resolution for his appointment.

Writ petition No. 7440 of 1991, filed by Sri Hari Shanker for payment of salary to him has to be dismissed, because normally a person is entitled to payment of salary for the period during which he works. In the instant case Sri Hari Shanker, not having been appointed, did not work in the College. However, the other relief for not recognising Sri Pramod Kumar Singh as Lecturer in Military Science, is liable to be granted. The other writ petition No. 3701 of 1991 was filed by Sri Pramod Kumar Singh challenging the selection of the candidates for appointment as Lecturer in the College by the Commission. While entertaining this writ petition, on 121991 this Court granted an interim order in favour of the petitioner therein with the result that the persons who were selected by the Commission and whose names were placed in the panel, could not be appointed in the College. This writ petition has been dismissed by this Court on 22111995 as infructuous in view of the statements made by the learned counsel for the petitioner therein. The panel prepared by the Commission, as such, remained in abeyance for about more than four years due to the interim order granted by this Court. Under Section 13 of the Act the life of the panel prepared by the Commission is one year. As the appointment from the said panel could not be made due to the interim order passed by this Court, it is necessary in the interest of justice that the period during which the said stay order remained in operation should be excluded while counting the period of the panel. Life of such a panel, as such, stands extended by the period during which the said stay order remained in operation. As the appointment of Sri Pramod Kumar Singh has been declared without authority of law, writ petition No. 26208 of 1992 filed by him has got to be dismissed.

Writ petition No. 6403 of 1990Hari Shanker v. ViceChancellor is allowed with costs. The order of the ViceChancellor approving the name of Sri Pramod Kumar Singh and the order of the Secretary of the College appointing him as Lecturer in the College, are quashed. The respondents are directed to issue appointment letter to Sri Hari Shanker appointing him in place of Sri Pramod Kumar Singh, forthwith. Writ petition No. 26808 of 1992Sri Pramod Kumar Singh v. Director is dismissed with costs. Writ Petition No. 7440 of 1991, Sri Hari Shanker v. State of U. P. is also dismissed, but without any costs.

Principal of the College is directed to inform the candidates selected and whose names are mentioned in the panel prepared by the Commission, about this judgment and giving them option to join the College as Lecturer in Military Science. Offer shall be made to them in accordance with the merit indicated in the panel prepared by the Commission. If the candidate placed at serial No. 1 does not join in response to the aforesaid letter of the Principal the candidate at serial No. 2 will be even similar offer and if he also declines, such an offer shall be given to the third candidate. Till any of the candidates, selected by the Commission, joins the College Sri Hari Shanker will continue as Lecturer in Military Science and will be paid salary regularly as and when it falls due.

Decided accordingly.