Lakhwinder Singh vs Guru Nanak Dev University and Others

L.N. Mittal, J.—Lakhwinder Singh has filed this civil writ petition under Article 226 of the Constitution of India assailing denial of approval by respondent no. 1-Guru Nanak Dev University, Amritsar (University), to appointment of the petitioner as Lecturer in Guru Nanak College, Batala-respondent no. 4 (College). Facts in this case are not in dispute. The petitioner applied for the post of Lecturer in Punjabi in respondent no. 4-college. After interview, he was selected for the post. Respondent no. 4-college vide letter dated 14.09.1990 Annexure P-5 appointed the petitioner as Lecturer in Punjabi in the college, subject to approval of respondent no. 1-University and approval of respondent no. 3-Director of Public Instruction (Colleges), Punjab (DPI). Accordingly, the petitioner joined the said post on 14.09.1990 vide letter Annexure P-6.

Respondent No. 4 Principal of the college vide letter dated 31.10.1990 Annexure P-7 asked respondent no. 1 for approval of appointment of petitioner. Respondent no. 1-University vide letter dated 22.01.1991 Annexure P-11 addressed to respondent no. 4-Principal of the College, declined approval to appointment of petitioner as Lecturer in Punjabi because he had not passed the M. Phil. examination at the time of interview. It appears that thereafter respondent no. 4 again made reference to the University vide letter dated 09.03.1991 for granting approval to appointment of petitioner. The University vide letter dated 02.04.1991 Annexure P-12 informed respondent no. 4 that approval for appointment of petitioner as Lecturer in Punjabi cannot be granted and order conveyed by letter Annexure P-11 be treated as final. Feeling aggrieved, petitioner has filed this writ petition, challenging aforesaid action of the University in declining approval to appointment of petitioner as Lecturer in Punjabi.

Respondents no. 1 and 2 by filing written statement contested the writ petition reiterating that the petitioner did not hold requisite qualification for appointment as Lecturer on the date of interview and therefore, approval to his appointment has been rightly declined. Similar stand has been taken by respondents no. 3 and 4 in their written statements.

I have heard learned counsel for the parties and perused the case file.

Counsel for the petitioner vehemently contended that the selection committee, besides other members, included nominee of the University as well as nominee of DPI, but the selection committee did not raise any objection that petitioner was not qualified for the post. It was also contended that qualification of M. Phil. could be obtained till 31.12.1990 as clarified by the University vide letter dated 19.01.1990 Annexure P-13. Reliance has been placed on two judgments of Hon''ble Supreme Court in the cases of Ram Sarup Vs. State of Haryana and Others, and Bhupinderpal Singh and Others Vs. State of Punjab and Others, .

On the other hand, counsel for respondents contended that the petitioner did not hold degree of M.Phil. till the date of interview and therefore, he was not qualified on the date of interview for being appointed as Lecturer and therefore, approval to appointment of petitioner as lecturer has been rightly declined by the University. Reliance in support of this contention has been placed on judgment dated 29.07.2013 of Hon''ble Supreme Court in the case of Rakesh Kumar Sharma versus Government of NCT of Delhi & others (Civil Appeal No. 6116 of 2013).

I have carefully considered the rival contentions. According to letter dated 19.01.1990 Annexure P-13, the candidates who already had degree of Ph. D. or M. Phil. or who acquired the said degree up to December, 1992 and December 1990 respectively were exempted from appearing in eligibility test for appointment as Lecturer. In other words, although for appointment as lecturer, it was made necessary to clear the eligibility test, but the candidates holding Ph.D. degree up to December 1992 or holding M.Phil Degree up to December 1990, were exempted from the eligibility test. However, it did not mean that a candidate could be appointed as Lecturer without obtaining the M.Phil or Ph.D. degree and also without passing the eligibility test. Either of the two conditions i.e. passing of eligibility test or holding of M.Phil./Ph.D. degree was essential qualification for appointment as lecturer. However, the petitioner held neither of the said two qualifications even up to date of interview. Admittedly, he passed M.Phil. examination vide result-cum-detailed marks card dated 08.11.1990 Annexure P-1/4 whereas interview had been held on 24.08.1990 vide proceedings Annexure P-4. Thus at the time of interview, the petitioner did not hold the requisite qualification for appointment as Lecturer. Consequently, he was not eligible for appointment as Lecturer and, therefore, approval to his appointment as such was rightly declined by the University. This view finds support from the judgment of Hon�ble Supreme Court in the case of Rakesh Kumar (supra). It was held therein that there is no obligation on the Court to protect an illegal appointment.

Judgments cited by counsel for the petitioner are not applicable to the facts of the instant case. In the case of Ram Sarup (supra), the appellant had been appointed as Statistical Officer on 20.02.1961 and was confirmed in that position on 15.10.1966. Sometime after 22.02.1967 he was appointed as Chief Inspector of Shops and worked as such till 01.01.1968 when he was appointed Labour-cum-Conciliation Officer. He was transferred from the post of Chief Inspector of Shops to the post of Labour-cum-Conciliation Officer because the State Government had taken decision that post of Statistical Officer and Labour-cum-Conciliation Officer should be treated as inter-changeable. However, for appointment of Labour-cum-Conciliation Officer, there was qualification of having five years experience in the field of Labour Laws which the appellant did not fulfill when he was appointed Labour-cum-Conciliation Officer. Consequently, order dated 28.04.1977 was passed by the Government reverting the appellant to the post of Statistical Officer. In these peculiar circumstances, it was held that irregular appointment of petitioner as Labour-cum-Conciliation Officer stood regularized when he gained the requisite experience while working as Labour-cum-Conciliation officer. In that case, the action of the State came too late. The appellant was reverted more than nine years after he had been appointed as Labour-cum-Conciliation Officer and had worked as such. In the instant case, however, approval to the appointment of petitioner as Lecturer was declined in the very first instance and, therefore, the petitioner cannot seek any assistance or support from the judgment of Hon''ble Supreme Court in the case of Ram Sarup (supra).

Judgment in the case of Bhupinderpal Singh (supra) rather goes against the petitioner. In that case, it was practice in the State of Punjab that candidates not eligible for a post on the date of making application or on the last date for submitting application, but who acquired qualification prior to being called for interview, were being selected and appointed. The Hon''ble Supreme Court disapproved and discontinued the said practice and put an end to it. It was also held that if cut off date is not specified in the service rules and is also not mentioned in the advertisement calling for the applications, then the cut off date to determine eligibility shall be the last date by which the applications have to be submitted. In the instant case, the petitioner did not hold eligibility qualification on the last date for submitting applications and even on the date of interview and even on the date of his appointment. Consequently, he was not eligible for appointment. In that case, appointments already made under the aforesaid practice were not disturbed by Hon''ble Supreme Court in view of power exercised under Article 142 of the Constitution of India. However, proposition of law laid down in the aforesaid judgment goes against the stand of the petitioner.

For the reasons aforesaid, I find that action of the University in declining approval to appointment of petitioner as Lecturer does not suffer from any vice and is not illegal and is not liable to be set aside on any ground. However, matter does not end here. As noticed hereinbefore, the petitioner was appointed as Lecturer by the college, subject to approval of the University and accordingly, the petitioner joined service on 14.09.1990. Pursuant to interim order passed by this Court, the petitioner is still continuing in service. Thus he has already rendered almost 23 years of service. In normal course, he is due to retire on 06.04.2016 on attaining the age of superannuation i.e. sixty years.

Keeping in view all these circumstances, I am of the considered opinion that the ends of justice would be met if instead of setting aside the appointment of the petitioner as Lecturer at this late stage, after having worked for almost 23 years, he is deemed to have retired w.e.f. 13.09.2013 on completion of 23 years of service with all requisite benefits for the same. It is ordered accordingly. Disposed of accordingly.