Jodhpur University Temporary Teachers, Forum vs The University of Jodhpur

J.R. Chopra, J.—These two petitions: one filed by Jodhpur University Temporary Teachers Forum (for short ''the Forum'' and the other filed by one Shri Mohan Swaroop Mahesh wari Associate Professor, Department of Physics and Member of syndicate, University of Jodhpur, Jodhpur raise certain common questions of law and facts and, therefore, they were heard together and are being disposed of by a common order.

Succinctly stated the facts of the writ petition No. 2916 of 1990, filed by the Fourm are: that the members of the petitioner fourm are serving this University for the past some years. In order to safeguard their rights and to have the bargains and for obtaining better conditions of service from the University of Jodhpur, this forum was constituted by the temporary teachers of the Jodhpur University.

It was contended that qualifications for confirming. Teaching Staff of the Jodhpur University are provided and regulated by Ordinance 317 of the Jodhpur University and those qualifications are still effective. The letter dated 3.5.1989 of the University Grants Commission, New Delhi with regard to the change in the qualifications for Teachers in the Universities and Colleges marked Annexure--1 cannot be considered sufficient to amend Ordinance 317 of the University ipso facto because that letter has no statutory force. The Ordinance 317 of the University of Jodhpur has to be amended as provided by Jodhpur University Act and its Statutes and till those qualifications are amended as per the procedure prescribed by law, no advertisement can be issued prescribing those qualifications which are mentioned in the letter dated 8.5.1989 of the University Grants Commission (hereinafter referred to as" the UGC"). Thus, it was submitted that the letter-dated 8.5.1989 of the UGC cannot supersede the Ordinance 317 of the University.

It was submitted that the mambers of the Fourm mentioned in Schedule-A annexed with the writ petition are those who were appointed as adhoc lecturers (Assistant Professors) for the last so many years and all of them were appointed last year vide order Annexure-2 dated 31.8.1989. Earlier, they were appointed upto 5.5.1990 but later vide Order Annexure-3 dated 2.5.1990, their term was extended upto 31.5.1990 or till the selected teachers become available. It was further submitted that the Syndicate vide its Resolution No. 17/89 dated 28.4.85 resolved that Assistant Professors who have served for 9 months or more shall be paid salary for the vacation period and in compliance of that resolution an Office Order dated 31.6.1990 was issued whereby the members of the petitioner Forum were made entitled to take salary upto summer vacation. It is alleged that the respondent University has now issued an advertisement No. Esf/1/90-91/21/58-91 dated 21.5.1990 prescribing certain qualifications for recruitment to the post of Lecturers (Assistant Profassors) and those qualifications are in consonance with the letter dated 8.5.1989 of the UGC. It was, therefore, submitted that the qualifications required for the post of Lecturers (Assistant Professors) vide advertisement Annexure-5 dated 21.5.1990 are contrary to the Ordinance 317 and, therefore, they have got no valid basis and hence, no selection can be made on the basis of this advertisement. It was further submitted that this advertisement relates to the selections of adhoc Lecturers (Assistant Professors) and therefore, it is a case of replacing adhoc Lecturers by another set of adhoc Lecturers. Thus, it is a case of continuous adhocism which has been deprecated by the Apex Court of the Country.

It was further contended that the University of Rajasthan has passed on order Annexure-7 dated 7.5.1990 whereby the adhoc Lecturers working under it have been allowed to continue till duly selected candidate join or till further orders, without subjecting them to a fresh test (selection). Even adhoc Lecturers working in the Mohan Lal Sukhadiya University, Udaipur were also allowed to continue vide Order Annexure-8. Thus the advertisement Annexure-5 dated 21.5.1990 and fresh recruitment to be made in pursuance of Anx. 5 have been challenged on the ground that it is a law that adhoc employees cannot be replaced by another set of adhoc employees as held by their lordships of the Supreme Court in Dr. A.K. Jain v. Union of India 1988 SCC 222. It was submitted that this Court has also allowed adhoc teachers to continue till the regularly selected teachers are appointed in the Govt Colleges in S.B. Civil Writ Petition Nos.125 of 1987 and 317 of 1987. It was submitted that since the members of the petitioner Forum are eligible to hold to posts of Lecturers (Assistant Professors) on adhoc basis, they should be allowed, without subjecting than to any fresh test, to continue till the regularly selected candidates are made available. It was also claimed that the University of Rajasthan and Mohanlal Sukhadiya University have extended the term of their adhoc Lecturers and the University of Jodhpur is subjecting the adhoc Lecturers to a glaring and hostile discriminations, which should not be permitted.

The advertisement Annexure-5 dated 21.5.1990 has been challenged on the ground that it has changed the qualifications for selection of Lecturers (Assistant Professors) on the basis of the letter dated 8.5.1989 of the U.G.C. which is contrary to Ordinance 317 of the University and, therefore, the advertisement Annexure-5 dated 21.5.1990 cannot be sustained and it deserves to be quashed because the letter dated 8.5.1989 of the U.G.C cannot ipso facts result in changing qualifications prescribed by Ordinance 317. It was, therefore, prayed that the advertisement Annexures-5 and 6 dated 21.5.1990 and 12.7.1990 be set aside and quashed and the respondent University be restrained from holding any selection in pursuance of the impugned advertisements and it be further directed to continue the persons/members of the petitioner forum till the regularly selected candidates are made available.

Briefly stated the facts of the writ petition No. 3679 of 1990 filed by Shri Mohan Swaroop Mahesh wari are: that the petitioner is a vigilant teacher, of the University of Jodhpur. He has been President and Secretary of Jodhpur University Teachers Association and is at present a member of the Executive Committee of the Teachers Associations. He is also an Selected member of the Syndicate and, therefore, he has preferred this public interest litigation.

He has claimed that this qualification prescribed for selection of adhoc teachers/lecturers are against the provisions of Ordinance 317 of the University of Jodhpur. It was submitted that the Syndicate of the University vide its Resolutions No. 56 and 106 dated 7.7.1989 and 7.11.1989 has made Rules for Appointment of Assistant Professors on adhoc basis and in Para (vii) of Resolution No. 106 of the Syndicate, it was reiterated that no person shall be given appointment to the post of Assistant Professor,i.e. Lecturer, unless minimum qualifications prescribed under Ordinance 317 are satisfied. The copies of Resolutions No. 56 and 106 have been marked as Annexures-2 and 3 respectively. It was further submitted that Section 6(3) of the Rajasthan University Officers and Teachers (Selection for Appointment) Act binds every selection committee to the qualifications Laid down in the relevant law. It was also submitted that the advertisement (Annexure-6) dated 12.7.1990 provides for qualifications different from those prescribed by Ordinance 317 of the University of Jodhpur and, therefore, such an advertisement being against the relevant Ordinance is ab--initio illegal and no selection can be held pursuant to that advertisement because that will illegal. It was further contended that as per the Resolution of the Syndicate the advertisement was required to be published in one all India paper in addition to one local paper and that has not been done. It was also alleged that some persons have been wrongly associated with the Selection Committee because they could not have been appointed as temporary Deans of the concerned Faculties. It has also been claimed that the Selection Committee did not have the requisite quorum when it undertook the work of selection. It was also claimed that consistent efforts were made to convince the Vice Chancellor of the University of Jodhpur that this selection should not be made on the basis of the qualifications which are contrary to Ordinance 317 but still the Vice Chancellor did not agree with their suggestion and, therefore, the petitioner has disassociated himself from the selection He has claimed that when the selection are being made without requisite quorum and by such persons who are not authorized to participate in the selection and when the qualifications prescribed in the advertisement are contrary to the provisions of Ordinance 317 of the University of Jodhpur then this selection should be quashed. It was also contended that the letter dated 8.5.1989 of the UGC does not change the qualifications for the post of Lecturers" (Assistant Professors in Engineering Faculty and, therefore, to that extent also, the advertisement is defective and no selection could have been made and therefore, the respondent University be directed to proceed with in accordance with law as indicated in the writ petition and no recruitment of adhoc Lecturers (Assistant Professors) for various Faculties be made in pursuance of the advertisement (Annexure-6).

A return has been filed in the writ petition filed by the Fourm, wherein it has been taken as a preliminary objection that the Fourm has no right to maintain this writ petition and, therefore, it should be dismissed on that ground because it is not legally recognized body It was contended that although the qualifications for selection to the posts of Lecturers (Assistant Professors) are prescribed by Ordinance 317 but those minimum qualification for appointment of Lecturers (Assistant Professors)are as required under Statute 7(ii) (c) and as notified Notification No;F.1/93/74 (CP)5 dated 13.6.1983 of the UGC or as may be amended or modified from time to time. It was submitted that as the UGC has sent the letter dated 8.5.1989 prescribing certain qualifications for selection of University Teachers in order to maintain uniformity of qualification in different Universities in the Country, the instructions issued by the UGC are to be followed and thus, according to Ordinance 317 itself, any modification of qualifications made by UGC ipso facto changes those qualifications. There is an inbuilt scope for amendment of the Ordinance 317 as soon as the qualifications are changed as per Statute 7(ii)(c) or by any notification or letter of the UGC. It was also submitted that the academic council has approved those qualifications vide its Resolution No. 66 of 1989 dated 16.9.1989. The relevant extract of the Resolution No. 66 of 1989 of the Academic Council has been filed marked as Annexure-R.l. According to the respondent University, the letter-dated 8.5.1989 of the UGC automatically modifies the existing qualifications required for the post of Lecturer (Assistant Professor) and, therefore, this writ petition is not maintainable.

It was contended that all adhoc Professors were appointed vide order dated 31.5.1989 upto 31.5.1990 and all of them who have completed 9 months of service were allowed salary for summer vacations but it does not mean that they continued in service upto 31.7.1990. Only benefit of salary has been extended to them because they have rendered 9 months of service. The University has issued advertisement Annexure 5 and 6 for adhoc and regular selections and the qualifications prescribed in those advertisement are in consonance with the letter Annexure-1 dated 8.5.1989 of the UGC and, therefore, to the extent, the Ordinance 317 stands amended and, therefore, all the ground, raised by the petitioners in both these writ petitions have no force. The advertisement for selection of adhoc teachers is Annexure-6 dated 12.7.1990. It was also contended that the University of Jodhpur is an independent body and it is not bound by what has been done by Rajasthan University and Mohan Lal Sukhadiya University.

It was also contended that Section 3(3) of the Rajasthan Universities Teachers and Officers (Selection for Appointment) Act, 1974 provides for appointment of adhoc teachers only for a period of one year and, therefore, the University cannot extend that period and hence, till the regularly selected candidates are made available, the University has to make adhoc appointment according to that Rule every year. Thus rule came up for interpretation before a Division Bench of this Court in Moot Singh v. University of Jodhpur D.B. Civil Writ petition No. 1121 of 1988, decided on 4.7.1988 and while deciding that writ petition, the learned Judge of the Division Bench have noticed the case of Dr. A.K.Jain (Supra) and have hold that that was a case where there was no statutory rule to guide selection but the Rajasthan Universities Teachers and Officers (Selection for Appointment) Act, 1974 makes a provision in Sub-section (3) of to keep temporary teachers not beyond the period of one year and therefore, these temporary Lecturers (Assistant Professors) cannot be continued beyond the period of one year. This is in reply to the contention of the Forum that the members of the petitioner Forum should be allowed to continue in service till the regularly selected candidates are made available. It was claimed that earlier in S.B. Civil Writ Petition No. 2987 of 1989, the University of Jodhpur made certain admission regarding the letter dated 8.5.1989 but that was done at a time when the Academic Council and the Syndicate have not passed the Resolution Annexure Rule 3. Once the Academic Council and the Syndicate have approved the letter dated 8.5.1989 of the UGC, there is no contradiction between the two stands taken by the University at different times. It was also submitted that if the qualifications prescribed by the UGC are not adopted by the University, the University for faits its right to get any grant from the UGC and that would affect its funds, and, therefore, the University has no option but to get any grant from the UGC. Moreover, according to Ordinance 317 of the University, any modifications in the qualifications for the post of Lecturers (Assistant Professors) by the UGC ipso facto changes the qualifications and, therefore, to that extent the advertisement Annexure 5 and 6 issued by the University are correct, proper and legal and they do not suffer from any illegality, It has also been claimed that roster system is applicable in the University for requirements. Even for making adhoc recruitment of University teachers, the persons of Schedule Caste and Schedule Tribe have to be appointed as per 100-point roster. It has also been claimed that five teachers in the Department of Hindi are not required and, therefore, all the members of the petitioner Forum cannot be allowed to continue in service, and no advertisement has been made to fill up those five vacancies. It was submitted that the letter Annexure-1 dated 8.5.1989 of the UGC along with the resolutions of the Academic Council and the Syndicate are legally sufficient to revise the qualifications. D

It was submitted that the University teachers have themselves availed the pay scale provided by this letter and therefore, this letter has already been acted upon and so those teachers cannot how turn round after taking benefit of pay-scale under this letter and say that they be allowed to continue in service because this letter relating to the qualification will not hold away. It was also submitted that in the earlier writ petition filed, the petitioner have contended that this letter ipso facto changes the qualifications mentioned in the letter and now when the University has adopted that contention, they are opposing it. It has also been claimed that the above referred Ordinance 317 is only relevant as regards the subjects mentioned at item Nos. 1 to 24 in Annexure-6 and hence for rest of the vacancies, the advertisement (Annxurs-6)dated 12.7.1990 for adhoc appointments is not the subject-matter of this writ petition. Even the Govt, of Rajasthan vide its letter dated 31.5.1989 has written to all Universities in Rajasthan including the University of Jodhpur enclosing with it the copy of Appendix-I of letter No. F.21/87/UI dated 22.7.1988 received from the Ministry of Human Resources Development (Department of Education) Govt. of India, New Delhi requesting the Universities to change the qualifications as prescribed by the UGC. It was, therefore, prayed that the writ petition be dismissed.

A rejoinder has been filed on behalf of the petitioner Forum reiterating its earlier submissions made in the writ petition. It was submitted that the exact requirements of the Department of Hindi and it is out to frustrate the existing temporary Lecturers in the Hindi Department. It was reiterated that Ordinance 317 cannot be amended ipso facto by the letter-dated 8.5.1989 of the UGC. It was submitted that when the salary was paid to those teachers upto 31.7.90, then it cannot be claimed they are in service only upto 31.5.1990.

A return has also been filed in writ petition No. 3679 of 1990 filed by Shri Mohan Swaroop Mahesh wari, where in it has been claimed that this writ petition is wholly misconceived and untenable and, therefore, it deserves to be dismissed at the admission stage because the petitioner has no locus standi to file the present writ petition. He is a member of the Syndicate. He is not affected by the selection made in any way. There is no infringement of his fundamental rights. It was submitted that his submission to file this writ petition as an vigilant Officer smacks of maladies. It was further submitted that the public interest litigation is permitted to be resorted to in cases of mostly down trodden people of our society, who are suffering from social injustice and who are not in position to advocate their own causes. The present case is thus by no stretch of imagination to be cases of above type so as to warrant public interest litigation and, therefore, this writ petition is absolutely mala fide being and arising out of personal vengeances or out of personal bickering. It was also submitted that the petitioner being a member of the Syndicate is also bound by the Resolution of the Syndicate to hold such selections and he cannot ventilate his personal grievances in this highest judicial forum. It was submitted that the reply filed in the writ petition filed by the Fourm may also considered to be a reply in this writ petition. It was claimed that the advertisement was sent to Rastradoot (a local daily) and to a publication of all India Level being Rajasthan Patrika and Hindustan Times. It was submitted that the candidates belonging to Agra, Calcutta, Kerala etc. came to attpnd the interview between 25.7.1990 and 28.7.1990 in response to the aforementioned advertisement. It was contended that the selection committees were constituted according to the Rules of the University and, therefore, challenged to the constitution of these Selection Committees is unfounded. Regulation 47 read with regulation 62(D) do not apply for the purpose of quorum for the adhoc selection Committees. Moreover, these Regulations are directory in nature and cannot affect the selection adversely. It was further submitted that it has not been mentioned by the petitioner in his writ petition as to in which Selection Committee, how many members were present and thus, the objection is vague. Reference to Section 6(3) of the Act is totally unwarranted. Objections regarding Dr. P.K.Saxena working as Dean is equally untenable. It was submitted that in fact, Shri N.S.Sankhla who was Dean had gone on leave abroad and then Dr. A.N. Nigam was appointed as Dean being next senior most Professors. It was further submitted that as Dr. A.N.Nigam was availing vacation and did not rejoin the duty curtailing his summer vacations to work as Dean, Dr. R.K.Saxena was appointed as Dean by the Vice-Chancellor, who was next senior most Professor as well as clear from Ex.5 filed by the petitioner himself. It was contended that Dr. A.N.Nigam had participated in the meeting of the selection committee held on 25.7.1990 not in his capacity as a dean but in his capacity as a subject-expert. He was at that time availing the vacation till 31.7.1990 and therefore, the submissions of the petitioner, that as Dr. Nigam had participated in the meeting of the Selection Committee hold on 25.7.1990, the appointment of Shri R.K.Saxena has come to an end is untenable.

A rejoinder to the reply was also filed by Shri Mohan Swaroop Mahesh wari, wherein it was claimed that he has locus standi to file this writ petition keeping in view the observations made by their lordships of the Supreme Court in S.P. Gupta Vs. President of India and Others, . That was a case of public interest litigation in which appointment of High Court Judges was involved and in that case, the High Court Judges were not down trodden people of the Society but their lordship of the Supreme Court have hold that public interest litigation to be maintainable. It was submitted that the law regarding public interest litigation has developed recently in view of the authoritative pronouncements of their lordship of the Supreme Court and, therefore, the petitioner has every locus standi to file this writ petition. It was contended that the petitioner has filed this writ petition as a vigilant teacher. He only wants that the respondent University should act according of law. The qualifications for selection of teachers(Lecturers or Assistant Professors) prescribed in the advertisement Annexurcs-5 and 6 are against the Ordinance 317 of the University of Jodhpur and therefore, this writ petition allowed.

One additional rejoinder was also filed by Shri Mohan Swaroop Mahesh wari, in which it has been claimed that the University itself has started the process of amendment of Ordinance 317 but the process has not yet been completed because the recommendations of the academic council and the Syndicate have not been approved by the Senate and the concurrence of the Chancellor has not been obtained. It was submitted that when the University itself has started the process of incorporating the (qualifications prescribed by the U.G.C. in its letter dated 8.5.1989 in the Ordinance of the University of Jodhpur as provided by the provisions of the Jodhpur University Act and the statutes framed by it and, therefore, the University cannot turn round and say that as these qualifications have been approved by the Academic Council and the Syndicate it ipso facto changes the Ordinance 317.Ccrtain other instances of amendments of some other provisions of the Ordinance have been given to show that there is no inbuilt mechanism in the Ordinance 317 for an automatic amendment of the qualification as soon as the latter Circular is received from the UGC. It was also claimed that Rajasthan Patrika is not an all India News Paper and advertisement has not been published in Hindustan Times as claimed by the respondent University. Simply sending of an advertisement to a daily newspaper does not amount to publications in that newspaper.

I have heard Mr. M.R. Singhvi, the learned Counsel appearing for the petitioner Forum, Mr. Mohan Swaroop petitioner of S.B. Civil Writ Petition No. 3679 of 1990 and M/s H.M.Parekh and J.M.Bhandari, learned Counsel appearing for the respondent University as also MR. S.N. Trivedi, learned Counsel appealing for the Intervenor.

Firstly, I shall deal with the two preliminary objections, which have been raised by the respondent University. The first preliminary objection raised by the respondent University relates to the locus standi of Shri Mohan Swaroop Mahesh wari to file the writ petition and the second preliminary objection relates to the right of Jodhpur University Temporary Teachers Forum to files a joint writ petition. So far as the second preliminary objection is concerned no stress has been Laid at the time of arguments but as regards the first preliminary objection raised by the respondent University, much stress was Laid by Mr.H.M.Parekh, the learned Counsel appearing for the respondents that Shri Mohan Swaroop Mahesh wari has no locus standi to files this writ petition.

It was argued by Mr. Parekh that a person who claims infringement of rights or disobedience of legal provisions must show that the alleged right or for that matter, the legal rights belong to him. A person who does not belong to a class of persons to whom the law or the Rules applies cannot challenge its constitutionality or illegality. In support of his submission, Mr. Parekh has placed reliance on a decision of their lordship of the Supreme Court in Jonnala Narasimharao and Co. and Others, Vs. State of Andhra Pradesh and Others, , in other words, the contention of Mr. Parekh is that the extra ordinary remedy under Article 226 of the Constitution cannot be used to strike down some actions of the University on the ground that it has affected prejudicial the interest of somebody other than the petitioner. He further placed reliance on a decision of this Court in Surya Narain Choudhary v. The Union of India 1981 RLW 490, wherein it was observed:

The founding fathers of the Constitution have couched the Article in comprehensive phraseology to enable the High Court to remedy injustice wherever it is found but it is equally true that a person invoking the extraordinary jurisdiction under Article 226 of the Constitution should be an aggrieved person, if he does not fulfill the character of an aggrieved person and is a stranger, the Court may, in its discretion, deny him such an extraordinary remedy, save in very special and exceptional circumstances. The petitioner challenging the order must have some specialized interest of his own to vindicate apart from a generally felt political concern, which is of abstract nature. Legal wrong requires a judicially enforceable right or interest. The touch-stone to the justifiability is injury to a legally protected right. A more nominal imaginary and a highly speculative adverse effect to a person or felt concern cannot be sale to be sufficient to bring him within the fold of an aggrieved person.

In Para 12 of the Judgment, it was further observed as follows:

The Supreme Court in a number of cases has Laid down that in order to have locus standi to invoke extraordinary jurisdiction under Article 226, a claimant should ordinarily be one, who has a personal or individual right in the subject-matter of the application. No doubt. Sometimes, this rule is inlayed but not abandoned. But the general rule is infringement of some legal right or to legal interest which may give to a person a locus standi in the matter.

Mr.Parekh has further submitted that the public interest litigation is not a litigation of an adversary character undertaken for the purpose of holding the State Govt, or its Officers responsible for making reparation. This kind of litigation involves a collaborative and cooperative efforts on the part of the State Govt, and its Officers, the lawyers appearing in the case and the Bench for the purpose of making human rights meaningful for the weaker Section of the community. It marks a step forward in the direction of reaching socio economic justice to the deprived and vulnerable Sections of humanity in this country. In support of his aforesaid submissions, he has placed reliance on a decision of their lordships of the Supreme Court in Dr. Upendra Baxi and Others (II) Vs. State of U.P. and Others,

On the other hand, Mr Mohan Swaroop Mahesh wari has stoutly controverter these submissions of Mr. Parekh and has submitted that the old concept of locus standi is now no more valid and hon''ble the Supreme Court in number of cases has entertained writ petitions through even letters and handbills and even on the basis of the newspapers. He has submitted that in this case, he has filed a regular writ petition. He is a representative of the Teachers of the University and is also a member of the Syndicate of the University and has been the President and Secretary of the Jodhpur University Teachers Association. He has, therefore, submitted that he is highly interest in safeguarding interest of his teaching community. According to him, in S.P.Gupta''s case (supra), the writ petition which was filed by some Advocates for the cause of Hon''ble Judges of the High Court was entertained. Hon''ble Judges of the High Courts are not downtrodden people of our community and, therefore, it cannot be said that public interest litigation can only be entertained when it relates to the cause of the downtrodden people of our society. While placing reliance on the decision of their lordships of the Supreme Court in S.P.Gupta''s case(Supra) he has submitted that he has every locus standi to file this writ petition. In S.P.Gupta''s case their lordships of the Supreme Court have held that it being litigation affecting judiciary, the lawyers had interest and locus standi to file the petitions and they could not be told off at the gates. It was observed in Para 14 of the Judgment as follows:

But the individuals who moves the Court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the court should not allow itself to be activised at the instance of such person and must reject his application at the threshold, whether It be in the form of a letter addressed to the Court or even in the form of a regular writ petition filed in Court.

Mohan Swaroop Mahesh wari has argued that his only concern is that proper qualifications should be prescribed for selection of Lecturers (Assistant Professors), which are provided by Ordinance 317 of the University of Jodhpur. He has no personal axe to grind. He has no political motivation or other oblique considerations. If his request is accepted, he is not going to be benefited. He being a member of the Senate is only interested to see that proper ax education is imparted to the students by proper selection of Lecturers (Assistant Professors) and, therefore, his only concern is that the University which has framed its own Ordinances must comply with those qualifications and should not go astray, and therefore, he is the proper person to get a redress of this public injury. In this respect, he took me through certain observations in Para 22 of the Judgment in S.P. Gupta''s case, which reads as under:

We would therefore, hold that any member of the public having sufficient interest can maintain as action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision.

Thus, he has submitted that he cannot be denied the right to bring this fact to the notice of the Court that the University of Jodhpur is going against its own Rules and Regulations.

Mr. Mohan Swaroop Mahesh wari has further placed reliance on a decision of their lordships of the Supreme Court in Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, , That was a case where Ordinances were being issued by the Govt, of Bihar and they were re-promulgated by the Governor from time to time without getting them replaced by Acts. This practice was in flagrant violation of constitutional provisions. Dr D.C. Waxhaw, who was a Professor of Political Science and who had done substantial research was held to be deeply interested in ensuring proper implementation the constitutional provisions. Their lordships of the Supreme Court observed that if any particular Ordinance was being challenged by the petitioner, he may not have the locus standi to challenge it simply as a member of the public unless some legal right or interest of his is violated or threatened by such Ordinance, but here what petitioner as a member of the public is complaining of is a practice which is being followed by the State of Bihar of repopulating the Ordinances from time to time without their provisions being enacted into Acts of the Legislature. It is clearly for vindication of public interest that the petitioner has filed these writ petitions and he must therefore, be held to be entitled to maintain his writ petition. Mr. Mahesh wari has submitted that in this case, he is not challenging the particular selection of particular subject but he only complaining that the prescribed qualifications for the Lecturers (Assistant Professors) are not those which arc prescribed by Ordinance 317 of the University of Jodhpur and the constitution of selection committee is also improper and, therefore, he has challenged the entire selection. As such he has ample interest and he cannot be told off at the gates that he will not be heard about it.

I find great substance in the submissions made by Mr. Mahesh wari and I am inclined to agree with him that he has locus standi to file this writ petition being a vigilant University Lecturer as also an elected member of the Syndicate of the University.

Mr. H.M. Parekh, the learned Counsel appearing for the respondent University has next contended that the writ of mandamus can only be issued in favour of a person who can be said to be aggrieved and that too only when a person is denied the legal right by someone who has a legal duty to do something or to abstain from doing something. In support of his submissions, he has placed reliance on a decision of their lordships of the Supreme Court in Mani Subrat Jain and Others Vs. State of Haryana and Others, . According to Mr. Parekh, in this case, no writ of mandamus can be issued because no legal right vests in the petitioner. In this case the petitioner has not only claimed writ of mandamus but he has also claimed that the respondent University be restrained or prohibited from making a selection on the basis of the advertisements Annexures-5 and 6 because in those advertisements, the qualifications prescribed for the selection of the Lecturers (Assistant Professor) are against the provisions of Ordinance 317 of the University of Jodhpur and therefore, when the legal right of a particular Section of the society is infringed a vigilant person can be allowed to bring such writ petition as aforesaid and, therefore, to this extent, the objection raised by Mr. H.M.Parekh, the learned Counsel appearing for the respondent University is overruled.

It was next contended by Mr. M.R. Singhvi and Mr. Mohan Swaroop Mahesh wari that earlier certain Lecturers were selected on the basis of the qualifications mentioned in Ordinance 317 of the University of Jodhpur. They worked last year and they were in service upto 31.7.1990. Now, the University of Jodhpur is going to hold a further selection of adhoc Lecturers (Assistant Professors) and, therefore it is a case where one adhoc set of Lecturers will be replaced by another set of adhoc Lecturers. According to them, this sort of aphorism has been deprecated by their lordships of the Supreme Court in a number of cases and, therefore, it was submitted that this cannot be allowed to continue. It was further submitted that this has resulted in glaring hostile discrimination because the University of Rajasthan and Mohan Lal Sukhadiya University have extended the terms of their lecturers till the regularly selected candidates are made available whereas this right is denied to them. In support of his submissions, Mr. Singhvi has placed reliance on a decision of their lordships of the Supreme Court in Dr. A.K. Jain''s case (Supra), where in it was observed as follows:

No adhoc Assistant Medical Officer/Assistant Divisional Medical Officer who may be working in the Railways shall be replaced by any newly appointed AMO/ADMO on adhoc basis. Whenever there is need for the appointment of any AMO/ADMO on adhoc basis in any zone, the existing adhoc AMO/ADMO who are likely to be replaced by regularly appointed candidates shall be given preference.

It has been contended by Singhvi that the Apex Court of this Country has; therefore, highly deprecated this practice of aphorism and it should not be allowed. In this respect, reliance has further been placed on a decision of their lordships of the Supreme Court in Rattanlal v. State of Haryana 1985 SCC 938 wherein the practice of appointment on adhoc basis at the commencement of the academic year of a large number of teachers and their termination of services before next summer vacation or earlier and further reappointing them on adhoc basis at the commencement of the next academic session was held to be unreasonable and arbitrary. It was held that this policy of fire and hire cannot be sustained. It was further observed that such a policy of aphorism followed by the State Govt, for a long term resulted in breach of Articles 14 and 16 of the Constitution and, therefore, suitable directions were given.

MR. Singhvi further placed reliance on a Division bench decision of this court in Dr. Mrs. Anita Kothari v. The State of Rajasthan. D.B. Civil Writ Petition No. 1388 of 19897 decided on August 20,1990, wherein the respondents were directed to allow the petitioner to continue in service till the regularly selected candidates become available from the R.P.S.C. it was further held that those persons who have been appointed to a post in leave vacancy will continue in those posts until the employees who have proceeded on leave returned and joined the post. It was further directed that the State Govt, would not terminate the services of the petitioner by transferring a regular recruiter from another institution where any of the petitioner may be serving. Termination of this incumbent: will only be followed when directly recruited RPSC recruitees are made available.

Reliance has further been placed on a Division Bench decision of this Court in Raiendra Kumar Rawat v. State of Rajasthan (D.B.Civii Writ Petition No. 846 of 1987 along with other 28 writ petitions), decided on May 15,1987 that was a case of legal assistants. In that case, it was observed that the petitioners and other legal Assistants who were appointed on urgent temporary basis during the years 1984-1986 are in no way different from the 8 adhoc appointees of the year 1982 and if the said 8 adhoc appointees can be continues after obtaining the concurrence of the Commission, there is no reason why similar concurrence of the Commission cannot be obtained in respect of the petitioners and other legal Assistants whose services have been discontinued and they may not be continued till regular selection is made for the posts held by them. It was ordered that the discontinuance of the services of the petitioners and other legal Assistants who were appointed on urgent temporary basis during the period 1984 to 1986 under orders dated 28th March, 1987 was not justified and they are entitled to continues in services as legal Assistants till regularly selected candidates for the post held by them are available. The respondents were directed to pass the necessary orders for continuing in service as Legal Assistants the petitioners and other Legal Assistants who were appointed on urgent temporary basis during the years 1984 to 1986, till candidates regularly selected by the Commission arc available for appointment on the posts held by the petitioners and other legal Assistants appointed on urgent temporary basis during the period 1984 to 1986.

This argument was stoutly opposed by Mr. H.M.Parekh and Mr. J.M.Bhandari, the learned Counsel appearing for the respondent University. They have submitted that the authority of Dr. A.K Jain''s case (supra) came up for consideration before a Division Bench of this Court in Moolsingh v. University of Jodhpur D.B.Civil Writ Petition No. 1121 of 1988, decided on 4.7.1988 and in that Judgment, Sub-section (3) of Section 3 of the Rajasthan Universities Teachers & Officers (Special Conditions of Service) Act, 1974 came up for consideration and it has been held that in view of the provisions of Section 3(3) of the aforesaid Act, the Temporary teachers cannot be kept in service beyond the period of one year. Sub-section (3) of Section 3 of the aforesaid Act. reads as follows;

Nothing herein contained shall apply to the appointment of a teacher or an Officer as a step-gap arrangement for a period not exceeding one year or to the appointment of a part time teacher or of a teacher or Officer in the pay scale lower than that of Lecturer or Assistant Registrar respectively.

Sub-section (1) of Section 3 of the aforsaid Act further provides that notwithstanding anything contained in the relevant law, as from the commencement of this Act, no teacher and no officer in any University in Rajasthan shall be appointed except on the recommendations of the Selection Committee constituted under S.5. However, a departure has been made in respect of adhoc appointees and that is provided by Sub-section (3) of Section 3 of the aforesaid Act.

Our attention was further drawn to Resolution No. 56 of 1988 dated. 7.7.1988 which has been filed as Annexure-2 by Shri Mohan Swaroop Mahesh wari, through which, Rules for appointment on adhoc basis have been framed. Rule l of these Rules provides that the Vice Chancellor may appoint Assistant Professor on adhoc basis for a period not exceeding one year. My attention was also drawn to Resolution No. 186 of 1988 Annexure-3 dated 7.11.1988 of the Syndicate whereby certain standing guidelines for appointments to the post of Assistant Professor on adhoc basis in the University of Jodhpur were approved by the Syndicate. Guideline (iv) provides that the tenurs of adhoc appointment shall be upto the end of Academic Session or till a stalurily selected candidate joins, whichever is earlier in case of appointments to be made against budgeted vacant post. Guideline (viii) further provides that the panel of persons selected for adhoc appointment to the post of Assistant Professor shall remain valid for the Academic session.

It was contended by M/s H. M. Parekh and J.M.Bhandari that in view of these legal provisions, no appointment of an adhoc teacher (lecturer) (Assistant Professor) can be extended beyond the period of one year and, therefore the University had no option but to terminate the services of adhoc Lecturers. (Assistant Professors) and to make afresh selection because continuation of adhoc Lecturer beyond the period of one year is not permissible by Sub-section (3) of Section 3 of the aforesaid Act and this is what has been held by a Divisional Bench of this Court in Mool Singh�s case (supra). In Mool singh''s case, the Division Bench of This Court has noticed the decision of Dr. A.K. Jain''s case (supra), and observed that in those cases where there are no such statutory rules existing, the adhocism was discontinued. Similar is the case in Rattanlal v. Slate of Harayana 1985 SCC 938.

Mr. Singhvi has submitted that Dr. Mrs. Anita Kothari''s case (Supra), has been decided later on by the same Judges who have decided Mool Singh''s case and in Dr. Mrs. Anita Kothari Case, it has been held that adhocism should not be allowed to continue and, therefore, the decision in Mool singh''s case is no more so good law. We are unable to agree with Mr. Singhvi in this respect. Dr. Mrs. Anita Kothari s case related to the interpretation of Rule 27 read with Rule 29 of the Rajasthan Education Service Rules. Rule 27 of the aforsaid Rules provides that temporary vacancies in the service may be filled by the appointing authority these to in an officiating capacity an Officer whose name is included in the list prepared under Rule 28 or in the lists prepared under Rules 24 and 25. This rule further provides that no such appointment made shall be continued beyond a period of one year without referring it to the Commission for their concurrence and shall be terminated immediately on their refusal to concur. Thus there is a provision for extension of the period of adhoc appointment beyond the period of one year, if the R.P.S.C.concurs. Moreover, Rule 29 provides that such persons as have pervious to such appointment officiated or served temporarily on the same or equivalent post encored in the services, may be permitted by the appointing authority to count such officiating or temporary service towards the period of probation upto a maximum of six months. Thus, not only this temporary appointment can be allowed to continue beyond one year but that can also be counted towards the period of probation upto a maximum of six months. So far as the percent case is concerned it has clearly been provided in Section 3 (3) of the Rajasthan Universities Teachers & Officer(Special Condition of Services) Act, 1974 for no extension beyond the period of one year in appointments of teachers as stop-gap arrangement and, therefore, Dr. Mrs. Anita Kothari case(supra ) is totally distinguishable from the decision rendered in Mool singh''s case.

Rajendra Kumar Rawat''s case (supra) relates to appointment of adhoc legal Assistant. There is no such equivalent provision to the provision made in Section 3(3) of the Rajasthan Universities Teachers & Officers(Special Conditions of Service) Act, 1974 and, therefore that authority is also distinguishable on facts. However, the authority of Mool singh case. Thus we are firmly of the view that (the Term of adhoc appointment beyond the period of one year cannot be extended to adhoc lecturers (Assistant Professors) in view of sub Section (3) of Section 3 of the Rajasthan Universities Teachers Officers (Special Conditions of Services) Act,1974.

It was next contended by Mr. M.R. Singhvi, the learned Counsel appearing for the petitioners that vide order Annexurc-7 dated 7.5.1990, the University of Rajasthan has extended the period of temporary teachers from 7.5.1990 to 5.9.1990 i.e. for a period of four months. Likewise, the Mohanlal Sukhadiya University, Udaipur has also extended the term of adhoc appointees vide order Annexure-8 dated May 17,1990 upto 15.7.1990 or till further orders or in case of adhoc appointment against leave vacancy till the incumbents return from leave, whichever is earlier. In these cases, the term of the period of adhoc teachers has been extended to a particular date but it has not been shown that this period is extended beyond the period of one year. It is true that the University has power to extend the period of temporary teacher for a period of one year. Initially, the adhoc teachers may be given appointment for one year at a time or far they may be given appointment for a particular period or some months and thereafter, that period be extended but that cannot as extended beyond the period of one year because that is the mandate of the law. As stated above, it has not been shown that Rajasthan University and Mohanlal Sukhadiya University have extended the term of their adhoc teachers beyond the period of one year and, therefore, it does not amount to glaring and hostile discrimination as has been claimed by Mr. Singhvi while relying on certain observations of their lordships of the Supreme Court in Para 6 of the Judgment in Vishundas Hundumal v. State of M.P. AIR 1991 SCL 636. Thus, to this extent, the contention of the temporary teachers that their services should be extended beyond the period of one year cannot be sustained.

Incidental, it was agrgued that the members of the petitioner Forum are in service upto 31.7.1990. The contention of the respondent University is that there services have been terminated on 31.5.1990.and those who have served continuously for a period of nine months upto that date, they have only been allowed benefit of salary of two months for the summer vacation period, as a special gesture. This benefit permitted to them is only an allowance. It does not keep them serviced upto 31.7.1990 because their termination has not been withdrawn. Only a particular benefit has extended to them. Now this controversy refrains to be academic in nature because what has beem claimed by the petitioner Forum is that their service should be extended till the regularly selected candidates are made available, cannot be granted to them and, therfore,to this extent, the writ petition deserves to be dismissed.

It was next contended by Mr.M.R. Singhvi and Mr. Mohan Swaroop Mahesh wari that the Advertisements Annexure-5 dated 21.5.1990 and Annexure-6 dated 12.7.1990 should be quashed because they do not lay down the proper qualifications for selection of the temporary and permanent teachers as lay down by Ordinance 317 of the University of Jodhour.It was specifically contended by Mr. Singhvi and Mahesh wari that they are not challenging the Advertisement Annexurc-5 dated 21.5.1990 and therefore, we are solely concerned with the validity of Advertisement, Annexure-6 dated 12.7.1990 in both these writ petitions.

It was submitted by Mr. Singhvi and Mahesh wari that according to Ordinance 317 of the University of Jodhpur, the minimum qualifications prescribed for appointment to the post of Lecturer (Assistant Professor) in the University is a doctoral degree or published work of equal merit of high standard along with consistent good academic record with 1''st or 2''nd class master''s degree in relevant subject of an Indian University or equivalent qualification of a foreign University. Now, not only the qualifications but also the criteria for good academic record has been changed and it has been provided in. Advertisement (Annexure-6) dated 12.7.1990 that for appointment as Assistant Professor (Lecturer), a person must have a Master''s degree in the relevant subject with at least 55% marks or its equivalent grade and good academic record. An explanation has been provided for good academic record, which means that consistent good academic record means that average of marks obtained in the two examinations immediately preceding the post graduate examinations be at least 54%. Certain other qualifications have also been prescribed but they are not in consonance with Ordinance 317 of the University of Jodhpur and, therefore, this selection is against the statutory Ordinance framed by the University and it cannot be allowed to stand and no selection can be allowed to be permitted in pursuant of this selection.

It was contended by Mr. Parekh and Mr. J.M.Bhandari that these qualifications stand automatically amended in pursuance of the letter Annexure-1 dated 8.5.1989 of the U.G.C. In the letter Anncxure-1 dated 8.5.1989 of the UGC it has been provided that the minimum qualification for appointment to the post of Lecturer in the scale of pay of Rs.2200-4400 shall be Master''s Degres in the relevant subject with at least 55% marks or its equivalent grade and good academic record. The contention of Mr. Parekh and Mr. Bhandari is that after the receipt of this letter Annexure-1 dated 8.5.1989 of the UGC the Academic Council has approved these qualifications in its meeting held on 16''th September, 1989(Annexure-R.l). It was submitted that by Resolution No. 66 of 1989, the Academic Council has approved the following qualification for teachers in the Universities/Colleges (General Faculties) in the Scale of Rs.2200-4400:

Master''s Degree in the relevant subject with at least 55% marks or its equivalent grade.

Good Academic Record.

(Copy of UGC latter dated 8.5.89 given at appendix-''IV).

The Academic Council has recommended the aforsaid qualifications for appointment to the post of Assistant Professors as required by UGC letter dated 8.5.1989 only for the faculties of Arts, Science Education, Social Sciences and Commerce in the pay scales of Rs.2200-4400.It was further resolved that good academic record would be defined to mean minimum second class throughout beginning list Board/University Examination. It was contended that this Resolution of the Academic Council was approved with slight variation by the Syndicate in its meeting held on 6 th May. 1990(Annexure-2 filed in the writ petition of Mohan Swaroop) It was, therefore, contcnded by Mr.Parekh and Mr. Bhandari that as soon as the academic council has approved these qualifications as provided by Statute 7(ii)(c) and as these qualifications have been modified by an order of the U.G.C.dated 8.5.1989 and the Academic Council''s Resolution has been approved by the Syndicate, that ipso facto changes the qualifications as provided by Ordinance 317. According to them, there is insult mechanism in Ordinance 317 that if these qualifications which are prescribed by Statute 7(ii)(c) or notified by Notification No. F.1/93/74(CP) 5 dated 13.6.1983 of the UGC,New Delhi are modified then those qualification by incorporation was also advanced and it was contended that the words or as may be modified from time to time'' govern both the clauses i.e. qualifications which arc prescribed by Statute 7(ii)(c) and they also relate to the qualifications which are prescribed by the UGC. Thus, when the Academic Council, amends the qualifications than that will become effective and if the UGC amends the qualifications than also they will be effective. In this respect, our attention was drawn to Section 12(d) of the University Grants Commission Act, 1956, which provides that the UGC may recommend to any University the measures necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendations. Our attention was also drawn to clause (e) of S. 26 of the Act, which provided that the UGC has power to make Regulations for any qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University having regard to the branch of education in which he is expected to given instructions. It has been claimed that the UGC vide its letter Annexure-1 dated 8.5.1989 has defined these qualifications for selection of the teachers in the aforesaid specialties and, therefore, the University has no option but to agree with them in order to achieve the Uniformity of education standard and the University education which may be imparted to the students through out the country.

Mr.Parekh and Mr. Bhandari have further drawn my attention to Section 14 of the UGC Act, 1956, wherein it has been provided that if any University grants affiliation in respect of any course of study to any college referred to in Sub-section (5) of Section 12A in contravention of the provision of that sub Section or fails within a reasonable time to comply with any recommendations made by the Commission u/s 12 or Section 13 (or contravenes the provisions of any rule under'' clause (f) or clause (g) of Sub-section (2) of S. 25 or of any regulation made under clause (e) or (f) or clause (g) of Section 26, the Commission, after taking into consideration the cause, if any shown by the University (or such failure or contravention) may withhold from the University the grants proposed to be made out of the fund of the Commission. It was therefore.clairned that it was obligatory on the part of the University to accept those qualifications, which have been advised to followed by the UGC. It may be that the University Grants Commission has not changed those qualifications as required by S. 26(c) of the UGC Act,1956 by issuing a requisite notification but it has power to advise the University under clauses (d) and (j) of Section 12 of the UGC Act, 1956, to take necessary for the improvement of the University education and advise the University upon the action to be taken for the purpose of implementing such recommendations. According to Mr.Parekh and Mr.Bhandari, even if this letter dated 8.5.1983 is not in the nature of a Notification and it is only containing recommendations then too, u/s 14 of the Act, the University is obliged to accept them and if it does not do so, the UGC may withhold the grants proposed to be made to the University.

It was further contended by Mr.Parekh and Mr.Bhandari that even the Govt.of Rajasthan has also issued a Circular Annexure-Rule 2 dated 20.7.1987 where by the State Govt, has direct to the Vice Chancellors of the all the Universities in Rajasthan to implement the revised grades for the College Teachers and it has asked the Universities to take action to amend Salute/Ordinance/Rules to incorporate the revised qualifications for recruitment of teachers in Universities/Colleges. It was further directed that in case, any advertisement for recruitment of teachers has already been issued by the Universities, Directorate College Education, the same may please be amended immediately and in future recruitment of Lecturers by any agency may not be made which do not fulfill the qualifications Laid down by the UGC. Thus, it was submitted that the State Govt, itself has impressed upon the University to incorporate these qualification prescribed by the UGC for all future advertisements and, therefore, the University had no option but to follow these qualifications. It was further contended that by this letter Annexure-1 dated 8.5.1989 of the UGC, the UGC has directed to amend the pay scales of the Teachers and the teachers have already taken advantage of those pay scales, which were proposed by the UGC and now, they cannot turn round after acting on the letter dated 8.5.1989 and say that they will have cakes only and will not be obliged to abide by the qualifications prescribed by the UGC. These are the arguments, which show that as to why, the University was obliged to advertise these qualifications.

As regards prescribing of these qualifications. the contention of the respondent University is that the letter dated 8.5.1989 of the UGC itself has amended the qualifications ipso facto because Ordinance 317 itself provided for it. Now, this has to be examined whether this contention can be sustained?

I may state that this contention which has been raised by the respondent University in its reply has been stoutly opposed by the petitioners. It was contended by Mr. Singhvi and Mr. Mahesh wari that the Ordinances of the University have statutory Character and they can only be changed as provided by Section 24 of the Jodhpur University Act, 1962. Sub. Section (1) of Section 24 of the aforesaid Act provides that Ordinance shall be made by the Syndicate, but such Ordinance shall take effect until it has been approved by the Chancellor after considering the views of these Not. Thus, the Jodhpur University Act, 1962 clearly provides that Ordinances shall be framed by the Syndicate but no such. Ordinance shall take effect until it has been approved by the Chancellor after considering the views by the Senate. A proviso has been added to Section 24 (1) of the Act, which provides that no Ordinance concerning admission to the University or to its examinations, courses of study, schemes of examination, attendance and appointment of examiners shall be considered unless a draft of such Ordinance has been proposed by the Academic Council. On the strength of this proviso, it has been claimed that initially, a draft of the Ordinance concerning the qualifications of the teachers should emanate from the Academic Council and thereafter, it should go to the Syndicate, which has no power to amend any draft proposed by the Academic Council under the provisions of Sub-section (1) but may reject it or return it to the Academic Council for reconsideration either in whole or in part together with any amendments which the Syndicate may suggest. Thus, it was submitted that if the Ordinance is approved by the Syndicate, it has to be submitted to the Senate and it shall be considered by the Senate at its next meeting. It has power by a resolution passed by a majority of not less than two thirds of the members voting to cancel any Ordinance made by the Syndicate and such Ordinance shall from the date of such resolution be void. If it is not so cancelled by one third majority then of course, it has to be sent to the Chancellor and the Chancellor after considering the views of the Senate will approve it and thereafter, it will have a statutory force and not otherwise.

I may state here and now that the provise to Section 24 (1) of the Jodhpur University Act 1962 docs not relate to prescribing of qualifications for selections of University teachers. None of the subjects incorporated in the proviso relate to prescribing of qualifications for selection of the teachers and, therefore, to this extent the proviso to sub. Section (1) of Section 24 of the Jodhpur University Act, 1962 is not applicable to the case of the petitioners.

However, Statute 7(ii)(c) authorizes the academic Council to make recommendations to the Syndicate with regard to laying down qualifications for the recruitment of teachers in any subject and the emoluments to be paid to them, subject to the Act, the Statutes and the Ordinances of the University of Jodhpur. It is under this particular statute that the Academic Council should recommend qualifications for the recruitment of teachers in any subject to the syndicate and the Syndicate has power to approve or reject it and if it is approved then it has to be sent to the Senate and the Senate has also power to reject it by two third majority, which makes the Ordinances void. In case, the Senate approves it or doesn''t reject it by a majority of two third of the members voting then, the Ordinance has to be sent to the Chancellor who after considering the views of the Senate shall approve it and if he approves it than it becomes the Ordinance. This is the manner in which the Ordinances can be framed as per Section 24 (1) of the Act.

Reliance has also been placed on clause (j) of S. 23 of the Jodhpur University Act, 1962,which provides that subject to the provisions of this Act and the Statutes, the Ordinances may provide for all or any of the following matters namely: the emoluments and the terms and conditions of service of teachers of the University and other staff of the University. Of course, the qualifications for selection of University teachers do not form part of the conditions of service but they can be categorized as terms on the basis of which the appointments of teachers can be made and,therefore,it was contended by MR. Singhvi and Mr.Maheshwari that Ordinance regarding terms and conditions of service of University teachers can be framed by the University and such terms and conditions have to be supplied by the Academic Council on the authority of Statute 7(ii)(c).

On the strength of these facts, it was contended by Mr.Maheshwari and MR. Singhvi that if an Ordinance has to be framed or amended then it can only be framed or amended in that particular manner and not otherwise. In support of this submission, reliance has been placed on a decision of their lordships of the Supreme Court in State of Uttar Pradesh Vs. Singhara Singh and Others, , where in it has been certain thing in a certain way, the thing must be done in that way or not at all and that the other methods of performance are necessarily forbidden applies to judicial Officers making a record u/s 164. This is based on certain observations of an English decision in Taylor v. Taylor 19761 Ch D 426 wherein it has been ruled that if a statute has conferred a power to Doan act and has Laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle provision might as well not have been enacted.

Reliance was also place on a decision of their lordships of the Supreme Court in A.K. Roy and Another Vs. State of Punjab and Others, ,where in it has been held that where Statute, confers a power to be exercised or performed in a specific manner, other modes of exercise or performance are impliedly barred.

To further elaborate this point, it was contended by MR. Singhvi and Mr.Maheshwari that the Ordinances have to be framed by the Syndicate as per Section 24 of the Act and in doing so, these Ordinances have to be sent to the Senate, which has power to reject them by two thirds majority of the members voting or if they are not so rejected or are accepted, than with its moments they have to be submitted to the Chancellor, and on whose approval, he Ordinance will take effect. Thus, the law has delegated the authority to the Syndicate to frame the Ordinances in a particular manner and it has also prescribed the manner in which the concurrence of the Senate as also of the Chancellor will be obtained. It was submitted that this delegated authority of the Syndicate cannot override the provisions of the law. In this respcct, reliance has been placed on a decision of their lordship of the Supreme Court in K.S.E. Board v. Indian Aluminum Co. AIR 1976 SC 1931 wherein it has been held that notwithstanding the subordinated legislation being Laid on the table of the House of Parliament or the Slate Legislature and being subject to such modifications, annulment or amendment as they may make, the subordinate legislation cannot be said to be valid unless it is within the scope of the rule making power provided in the Statute. Relying on the aforesaid observations of their lordships of the Supreme Court, MR. Singhvi and Mr. Mahesh wari have submitted that the law provides that the Ordinance has to be made in a particular way then the argument of change of Ordinance ipso facto is foreign to Section 24 of the Jodhpur University Act, 1962. They have submitted that even if the Academic Council and Syndicate have approved the qualifications prescribed by letter Annexure-1 dated 8.5.1989 that will not have the effect of change or modify thereof qualifications prescribed by Ordinance 317 till it is sent to the Senate and is approved by the Chancellor as well as the Senate. They have submitted that a delegate cannot travel beyond the powers delegated to it. In support of this submission, reliance has been placed on Smt. Mainia (Dead) through Lrs. Vs. Deputy Director of Consolidation and Others, ; Hukam Chand etc. Vs. Union of India (UOI) and Others, ; State of Bombay (Maharashtra) Vs. Shivbalak Gourishanker Dube and Others, ; Marathwada University Vs. Seshrao Balwant Rao Chavan, and Assistant Collector of Central Excise Vs. M/s. Ramakrishnan Kulwant Rai, .

It was argued by MR. Singhvi and Mr.Maheshwari that in this case authority regarding framing of Ordinances has been delegated to the Syndicate by the University and, therefore, the Ordinances can be changed, modified or substituted only in the manner as provided by Section 24 of the Act and not in any other manner. They have submitted that mere approval of the Academic Council is approved by the Senate and the Chancellor. They have further submitted that this position has been accepted by the respondent University and it was because of this that the letter Annexure-1 dated 8.5.1989 has been placed before the Academic Council for its approval and it has been approved by it has further recommended to the Syndicate for change in the Ordinance. That resolution was went to the Syndicate and the Syndicate has also approved that resolution and has recommended that it be sent to the Senate. Thus, process has been started for amendment of the Ordinance 317 of the University and now, the University cannot turn round and say that the amendment is ipso facto. It was further claimed that in the earlier writ petition, the University has taken a stand that the letter of the UGC cannot ipso facto change the Ordinances. A particular procedure has be adopted for framing of Ordinances of the University. This was in reply to the ipso facto in view of the letter dated 8.5.1989 of the UGC and in that writ petition, the University has taken the stand that the letter of the UGC cannot ipso facto change the Ordinance. It was, therefore, claimed that the respondent University is stopped from taking such a contrary stand. In this respect, reliance has been placed on a decision of their lordships of the Supreme Court in Mahindra & Mahindra Ltd. v. UOI AIR 1979 SC 758 wherein it was observed that the estoppels can arise only if a party to a proceeding has altered his position on the faith of a representation or promise made by another. Here, in this case, the petitioners have not changed or altered their position on account of this change. They were eligible for appointment even as per the qualifications prescribed by Ordinance 317 of the University and, therefore, this authority does not help the case of the petitioners that the respondent University is stopped from taking up this changed stand as regards the applicability of letter dated 8.5.1989 of the UGC.

It was also contended that the principle of resjudicate would apply to the writ petition filed under Article 226 of the Constitution. In support of this submission, reliance has been placed on a decision of their lordships of the Supreme Court in Commissioner of Income Tax, Madras Vs. Sivakasi Match Export Company, .It is a question of legal interpretation whether a particular provision can be interpreted one way or the other and, therefore, if the University has changed its stand on the basis of the resolution of the Academic Council and the Syndicate then such a changed stand cannot be treated as barred by principle of resjudicata and, therefore, to that extent, I am unable to agre with Mr. Singhvi and Mr. Mahesh wari.

It was further contended that the University has waived its right to take a changed stand because in the earlier writ petition, it has taken the stand that the letter-dated 8.5.1989 of the UGC cannot ipso facto change the Ordinance. When a particular provision comes up for interpretation, waiver and acquiescence cannot be claimed because a person may act under some wrong a device but that will not prohibit him from taking the changed stand if it is permitted by law. Thus, when a particular provision comes up for interpretation, no waiver, acquiescence or the principle of law. Thus, when a particular provision comes up for interpretation, no waiver, acquiescence or the principle of resjudicate cannot be allowed. The University has explained its position about its changed stand. In the facts and circumstances of this case, I am firmly of the opinion that even the petitioners are guilty of changing their own stand because in the earlier writ petition, they have also taken the plea that the letter of the UGC ipso facto changes the Ordinance and now, in this writ petition, they have taken a contrary stand that the letter of the UGC cannot ipso facto change the Ordinance 317 of the University.

After considering the aforesaid authorities, this much is clear that when a particular procedure is prescribed for framing of the Ordinance, that procedure has to be followed. Ordinarily, an ordinance can only be changed or modified or framed as prescribed by the Jodhpur University Act, 1962. Ordinances cannot override the Statutes of the Jodhpur University and the Statutes cannot override the provisions of the Act. This is the settled legal position. When the Jodhpur University Acl,1962 provides for a particular procedure for change of Ordinances than procedure has to be adopted. It is one thing that the UGC being financing body, the University is obliged to accept their dictum. It is also true that the UGC has power to recommend to any University the measures necessary for the improvement of the University education and advise the University upon the action to be taken for the purpose of implementing such recommendations but that by itself is not sufficient to authorize the UGC to change the statutory provisions of a particular University. Even this has also advised the respondent University to change its Statutes, Ordinances and the Rules. It has not asked the respondent University that it should revise or modify the qualification for recruitment of the teachers in the University without undergoing the due process of law. Now, having said that, I have to consider the arguments advanced by Mr.Parekh and Bhandari that the Ordinance 317 has an inbuilt mechanism for a automatic change of qualifications of the University teachers and this has been canvassed on the strength of statute 7(ii)(c). The words used in the beginning of Ordinance 317 or as may be modified from time to time'', according to Mr.Parekh and Mr. Bhandari cover both the contingencies whereby qualifications are prescribed i.e. Statute 7(ii)(c) and the Notification No. F.1/93/74(CP)/5 dated 13.6.1983.

I have given my most anxious consideration to the aforesaid submissions of Mr.Parekh and Mr.Bhandari and I may frankly say that I cannot agree with this submission of Mr.Parekh and Mr. Bhandari.

Ordinance 317 of the Jodhpur University reads as follows:

Order 317. The following shall be the minimum qualification for appointment of University teachers as required under Statute 7(H) (c) or as notified by Notification No. F. 1/93/74/CP Part v. dated 13.6.1983 of the UGC.NewDelhi or as may be modified from time to time.

The contention of Mr.Parekh and Mr.Bhandari is that the qualification for appointment of University teachers will be as required by Statute 7(ii)(c) or as notified by Notification No. F.1/93/74/CP/Part v. dated 13.6.1983 of the UGC or as may be modified from time to time by either of these two methods. According to Mr.Parekh, this clause or as may be modified from time to time'' is not disjunctive but it is adjunctive to both these clauses and so, if the qualifications are changed by-the Academic Council as required under Statute 7(ii)(c) or they are changed by the UGC then the qualifications will stand changed ipso facto. In this respect, he has railed upon the theory of legislation by incorporation and has placed reliance on a decision of their lordships of the Supreme Court in Bajaya Vs. Gopikabai and Another, , wherein it was observed that broadly speaking, legislation by referential incorporation falls in two categories: First, where a statute by specific reference incorporates the provisions of another Statute as of the time of adoption. Second. where a statute incorporates by general reference the law concerning a particular subject, as a genus. In the case of former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference. In that case, the provision of Section 151 of the M.P. Land Revenue Act came up for interpretation with reference to the provisions of Section 4(2) of the Hindu Succession Act,1956.S.151 of the M.P. Land Revenue Act, which is Chapter XII runs thus:

Subject to his personal law, the interest of a tenure holder shall on his death pass by inheritance, survivorship or bequest, as the case may be.

It was contended that this makes that personal law applicable as it was in a vogue at the time Section 151 was incorporated in the Code. This contention was repelled by their lordships of the Supreme Court and it was held that the personal law of the tenure holder at the time of his death will be applicable and if the law has changed after incorporation of Section 151, prior to the death of the tenure holder then that law will be applicable. Even if, we apply this authority in support of the contention of Mr. Parekh and Mr.Bhandari then too it does not help the case of the respondent University. The notifications are issued by the UGC under clause (e) of S. 26 of the University Grants Commission Act, 1956, which authorizes the UGC to define qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University having regard to the branch of education in which he is expected to give instructions. Earlier, these qualifications were prescribed by the UGC by its Notification dated 13.6.1983 and by that notification, THC respondent University was asked to adopt those qualifications by amending its Statutes, Ordinances and Regulations etc., as maybe necessary and a threat was given that if it is not done then Section 14 of the UGC Act, 1956 will come into play. The notification dated 13.6.1983 has not been changed or modified or altered. Only a letter has been written by the UGC on 8.5.1989 that these qualifications should be changed. This can at best be treated as a recommendation made u/s 12(d) and(j) of the UGC Act and, therefore, what has been incorporated in Ordinance 317 is the Notification dated 13.6.1983 of the UGC and as that notification has not been amended and till it is amcnded,the mere letter dated 8.5.1989 cannot ipso facto change the qualifications. If the respondent University wants to change the Ordinance 317, than it has to change it as per the procedure prescribed by law.

Reliance was also placed on a decision of this Court in Duel Singh v. Municipal Council, Udaipur RLW 1977 203where in Section 15, of the Rajasthan Municipalities(Class IV) Service Rules, 1964 provided that until rules are framed under s.257 of the Act, the conditions of the services of the employees of the Municipal Boards would be regulated by Rajasthan Service Rules, 1959 except the provisions relating to the pension as amended from the to time. Thus, it was incorporated in the very rule that till the rules are framed under s.297 of the Act, the conditions of the services of the employees of the Municipal Boards would be regulated by Rajasthan Service Rules, 1959 except the provisions relating to pension as amended from time to time. The word or'' has not been used here in the Rules of 1964 and, therefore, it cannot be held to as Disjunctive. It was in this context that the learned Judge of this Court has held that this incorporates the provisions of Rajasthan Service Rules as they are changed from time to time and therefore, the Rajasthan Service Rules will govern the conditions of services of the Municipal employees accordingly. Whenever some changes are made in the RSR,they will effect the service conditions of the employees of the Municipal Board. That, of course, is not the case here. I may state here that Statute 7(ii)(c) does not prescribe any qualifications. It only authorizes the academic council to lay down qualifications for recruitment of teachers in any subject and the emoluments to be paid to them. Thus, this is only is an enabling provision and qualifications have to be Laid down by the Academic Council and it was because of this that is has been provided that qualifications for appointment of University teachers will be as required under, Act and the Ordinances of the University. When these qualifications form part of the Ordinance 317,then Ordinance can only be changed as provided by law in Section 24 of the Act of 1962. That cannot be changed in any other manner. Now, the University has adopted the Notification dated 13.6.1983 of the UGC because this Notification was forwarded to the Registrar of the Respondent University for incorporation in its Act, Ordinances, Statutes or Regulations and it was threatened that if it is not done, than the provisions of Section 14 of the UGC Act can be attracted and accordingly, the respondent University has passed a resolution to adopt those qualifications which are prescribed in Notification dated 13.6.1983 of the UGC. Earlier also, that procedure has been adopted as will be clear from Annexure A-l to Annexure C-13 filed on behalf of the petitioner Forum and it was after adoption of the prescribed procedure that Ordinance 317 was changed. Thus according to me, Ordinance 317 should be interpreted to mean that presently the qualifications which are prescribed by Ordinance 317 are as required under statute 7(ii)(c) and as notified by Notification dated 13.6.1983 of the UGC or as they may be modified from time to time. The phrase, ''or as may be modified from time to time, means that presently the qualifications will be as they are so provided in Ordinance 317 under Statute.7 (ii)(c) or as notified by notification dated 13.6.83 of the UGC and they can also be modified from time to time as the situate may require. Thus, the clause or as may be modified from time to time'' is not only adjunctive to qualifications that may be prescribed by Academic Council under Statute 7(ii)(c) as also to the modifications that maybe irate in Notification dated 13.6.83 but it is also an independent provision which authorizes to University to change this Ordinance from time to time as it deams proper but in all these three eventualities the Ordinance, will have to be modified as provided by law. Thus, any modification in Ordinance 317 can only be done by the procedure prescribed by Section 24 of the Act and it cannot be done otherwise. It does not provide for any ipso facto amendment by any inbuilt mechanism in the Ordinance as suggested by Mr. Parekh & Mr. Bhandari. It is one thing that a penal provision has been made in Section 14 of the UGC Act, 1956 but that only says that if the recommendations made or qualifications prescribed are hot adopted and no reasonable explanation is furnished for their non adoption, Section 14 of the UGC Act, 1956 can be attracted and action can be taken against the concerned University and giants can be stopped. It does not mean that any recommendation made by the UGC'' would ipso facto change the Ordinance of a University. That has not been provided in the scheme of the Jodhpur University Act, 1962 and when that has not been provided in the Jodhpur University Act then there is no scope for ipso facto amendment of Ordinance 317. Ordinance 317 has to be amended only in the manner prescribed by the law and till that is done, the Ordinance cannot be held to have been changed automatically.

Reliance in this respect can be placed on a decision of their lordships of the Supreme Court in Gujarat University v. Shri Krishana AIR 1963 SC 783where in it was observed that the Senate is a body acting on behalf of the University and its power to enact Statutes must lie within the contour of the powers of the University conferred by the Act. On the strength of this authority, it can be said that when the Act provides that the University itself can change the Ordinance in a particular way when Academic Council or Syndicate cannot given power to amend the Ordinance in the manner different from what has been provided by Section 24(1) of the Jodhpur University Act,1962.

It has been hold by their lordships of the Supreme Court in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, that in absence of any clear-and specific Csclusionary provision in the Statute, the Court should plainly treat it as a general provision instead of solving in search of any possible hidden of implied exclusion. In Shri Niwas v. Kesari Chand 1985 RLR 560, it was held by this Court that interpretation should be reasonable and sensible. The meaning, which may lead to manifest contradictions or to some invonvenierice or absurdity. Hard Ship, injustice or that may do violence to legislative intent should be avoided.

Keeping in view these principles regarding interpretation of any statute, I am firmly of the view that the letter Annxeure-1 dated 8.5.89 of the UGC cannot ipso facto change the Ordinance 317 of the respondent University. Even the resolution of the Academic Council, which was approved by the Syndicate, cannot change the Ordinance. Ordinance 317 has to be changed in the manner as provided in Section 24 (1) of the Jodhpur University Act, 1962 and when that has not been done, the qualifications which have been prescribed in Annexure-6 dated 12.7.90 will go contrary too the provisions of Ordinance 317 of the respondent University. Moreover, the letter-dated 8.5.1989 does not prescribe any qualifications for the Lecturers (Assistant Professors) in the Engineering Faculty of the respondent University. They are provided in Ordinance 317 (4) and the Indian Council of Technical Education has not recommended for any change in the academic qualifications for selection of Assistant Professors in the Engineering Faculty of the respondent University and therefore to this extent also the advertisement Annexure-6 dated 12.7.1990 is faulty. The syndicate in its Resolution dated 7.7.1988 referred to above provided the minimum qualification for adhoc appointments of the Assistant Professor in all faculties shall be same as Laid down in the relevant law. This was further clarified by Resolution No. 106 dated 7.114,988 of the Syndicate where certain guidelines were provided for appointment to the post of Assistant Professors orator basis in the respondent University and the guideline (vii) provides that the panel of persons selected for adhoc appointment to the post of Assistant Professor shall remain valid for the Academic session and no person shall be given adhoc appointment unless the minimum qualification prescribed by Ordinance 317 are satisfied.

In view of these Resolution of the Syndicate and in view of the fact that Ordinance 317 has not been changed and cannot be held to have been amended by resolution of the Academic Council and the Syndicate then the qualifications prescribed for recruitment of Assistant Professors by the respondent University in all the branches for which the selection are to be made are against the provisions of Ordinance 317 of the University and therefore, the advertisement (Annexure-6) dated 12.7.1990 cannot sustained and deserves to be quashed

It was submitted by Mr. Mahesh wari that selection committees have not been properly constituted. They acted without quorum. The advertisement have not been published in all India paper as per Rule 3 of the Resolution of the Syndicate dated 7.7.1988 All these question are questions of facts about which a dispute has been raised by the respondent University. Those disputed questions of fact cannot be gone into in the writ jurisdiction under Article 226 of the Constitution. They may require avidence as to whether Rajasthan Patrika is an all India paper or whether its circulation is through out India. So that as it may, it is a further question of whether a particular person has gone on leave abroad and summer vacation and whether somebody else could be nominated in his place as Dean to represent that particular faculty. It is also not clear how many persons participated in the meeting of the selection Committee and who of them absent and unauthorized members. As these questions are questions of fact and they have been disputed by the respondent University, I need not detain myself to enquire about these disputed questions of fact. What is material is that in view of the aforesaid discussion the members of the petitioner forum have no right to get their services extended beyond the period of one year on account of Rule (3) of the Act of 1974 and further the Advertisement Annexure-6 dated 12.7.1990 deserves to be quashed and no selection or appointment should be made inpursuahce of this advertisement because it is against the provisions of statute.7 (ii)(c)

In the result these writ petitions are partly allowed. The relief sought by the petitioner forum that their services should be extended till the regularly selected teacher are made available is rejected, However the advertisement (Annexure-6) dated 12.7.1990 is quashed and it is ordered that no selection or appointment can be made on the post of Assistant Professor in the respondent University in the pursuance of Advertisement (Annexure-6) dated 12.7.1990. The parties are left to bear their own costs.