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P.Venkatarama Reddi, J. 1.The appellant in C.A.No. 6048/2000 who was working as a lecturerin Art and Crafts in the University College of Education, Kurukshetra, forconsiderable time applied for the post of Principal pursuant to theadvertisement No. 10 of 1995 issued by Kurukshetra University. It appearsthat this advertisement is the fourth in the series since 1990. No candidatewas selected on the earlier occasions. The appellant and the 1st respondent inthe said appeal who was lecturer in English in the same College, were calledfor the interview. The Establishment Committee which interviewedcandidates, recommended the appointment of the appellant. Therecommendation was accepted by the Executive Council on 10.1.1997 andthe appellant was appointed as Principal in January 1997. About one yearlater, the 1st respondent in CA No. 6048 of 2000 filed C.W.P. No. 351/98questioning the selection and appointment of the appellant on the ground ofnot having the requisite qualification for the post of Principal and sought fordirection not to confirm him in that post. This was preceded by arepresentation filed a few days earlier by the 1st respondent to the University.The said Writ Petition was disposed of by Punjab & Haryana High Court on12.1.1998 directing the representation of the 1st respondent to be consideredby passing a speaking order before confirming the appellant. By acommunication dated 03.09.1998 addressed to the 1st respondent herein, theUniversity communicated the factum of rejection of the representation and thegrounds of rejection. The last para of the letter dated 03.09.1998 reads asfollows:
"Dr. Kushwaha was M.A. in first Division. No doubt hedid not possess the qualification of M.Ed. but in view ofthe resolution of the Executive Council this qualificationwas relaxable and accordingly he was considered andselected by the Establishment Committee by relaxing thequalification of M.Ed. Therefore, the plea of Dr. Joshithat he did not possess the qualification laid down in theadvertisement is wrong as his case was covered underrelaxation clause as passed by the Executive Council inits meeting held on 22.9.1993. Therefore, therepresentation of Dr. Joshi has no merits and berejected."
Thereafter another Writ Petition-CWP No. 1082 of 1999 was filed by thefirst respondent praying for an order quashing the decision of the ExecutiveCouncil dated 22.9.1993 by which relaxation of qualification of M.Ed./B.Ed.was granted to the appellant and for quashing the communication dated3.9.1998 by which his representation was rejected. A further direction wassought for to re-advertise the post of principal by quashing the appointmentof the appellant. The judgment rendered in this CWP has given rise to theseappeals filed by the appointee - Dr. Kushwaha and the University.
The High Court held that the appellant herein did not possess theessential qualification of M.Ed or B.Ed in terms of the advertisement and itwas not open to the Executive Council to relax that qualification as it had nosuch power. Adverting to the resolution of the Executive Council dated22.9.1993, the High Court commented that the said Resolution had norelevance to the advertisement issued in the year 1995. The High Court,therefore, set aside the selection and appointment of the 3rd Respondent asPrincipal and directed a fresh advertisement to fill up the post in accordancewith law. The appellant was directed to vacate the post forthwith. However,he has been continuing in office till date in view of the interim order passedby this Court and the consequential decision taken by the University.
We have, therefore, to consider the crucial question whether B.Ed orM.Ed. qualification, as the case may be, is an essential and indispensablerequirement for selection to the post of Principal of University College ofEducation.
The qualifications for the posts of Lecturers and Principals in therecognized Colleges of Education are prescribed by Ordinance XVI. Thefollowing are the qualifications prescribed for the post of Principal :-
Principal :
(a) A Doctor's Degree.
(b) A consistently good academic record with highSecond Class (55% marks or grade B in even pointscale) M.A. Education with B.Ed (Second Classwith 50% marks in Theory and Practice separately)or Master's Degree in any subject with M.Ed (55%marks in one degree and 50% marks in the other).
(c) Teaching experience of at least 8 years in arecognized College or University out of whichteaching experience of at least five years should bein recognized College of Education or theDepartment of Education of a University. Personswith some administrative experience in aneducational Institution will be preferred.
Provided that the teaching experience in the case of lady Principals of Women Colleges ofEducation may be reduced upto five years by theVice-Chancellor on the basis of merit taking intoconsideration the age, academic record andexperience.
Note :
(i) The condition of Ph.D. Degree shall not apply tothose having 16 years of teaching experience in thecapacity as a regular lecturer in a College.
(ii) The following qualifications are applicable in the case of University appointed lecturer or auniversity approved lecturer of a Recognisedcollege appointed before 27.1.1976.
(emphasis supplied)
Principal -
(a) A consistently good academic record with HighSecond Class (55% marks or grade B in sevenpoint scale) M.A. Education with B.Ed.(Second Class with 50% marks in Theory andPractice separately) or Master's degree in anysubject with M.Ed. (55% marks in one degreeand 50% marks in the other).
(Relaxable in the case of a Universityappointed lecturer or a University approvedlecturer in any capacity, of a recognizedCollege appointed before 27.1.1976); and
(b) An M.Phil Degree or a recognized degreebeyond the Master's level or published workindicating the capacity of a candidate forindependent research work.
(c) Provided that if a candidate possessing thequalification as at (b) is not available or notconsidered suitable, the College on therecommendation of the Selection Committeemay appoint a person possessing thequalifications as at (a).
(d) Teaching experience of at least 10 years in arecognized or affiliated college or Universityout of which teaching experience of at least 5years should be in recognised college ofEducation or the Department of Education of aUniversity. Persons with some administrativeexperience in an educational institution will bepreferred.
Provided that the teaching experience inthe case of lady Principals of Women Collegesof Education may be reduced up to five yearsby the Vice-Chancellor on the basis of merittaking into consideration the age, academicrecord and experience."
In the advertisement, it is stated that the qualifications arementioned in the application form. A copy of the application form isnot on record. However, an extract of the qualifications for the postof Principal, University College of Education is found in the paperbook. In that, the word 'and' occurring at sub-clause (a) of Note II(extracted above) is found omitted. The same mistake is repeated inthe extract of qualifications given by the High Court. Thequalifications set out in the advertisement coupled with theapplication form are supposed to be in conformity with the relevantrules and ordinances. A copy of the Ordinance No. XVI (correctedupto 1994) has been filed by the learned counsel for the 1strespondent-writ petitioner at the time of hearing. We must presumethat the qualifications mentioned in the application form are inconformity with the Ordinance. Therefore, we proceed on the basisthat at the end of sub-clause (a) following Note II, the expression'and' occurs. We have pointed out this glaring omission as the word'and' has some bearing on the interpretation sought to be placed bythe learned counsel for the appellant.
It may be seen that two categories of eligible candidates are dealt within the Ordinance. The second part prescribes the qualifications for such ofthose lecturers who were either appointed by the University or whoseappointments in a recognized College were approved by the Universitybefore 27.1.1976. The first part applies to the candidates who do not comewithin the ambit of second part (i.e. Note II of the Ordinance). We areconcerned here with second part underlined above.
Now, let us see the educational qualifications of the first respondent.They are: M.A. in 1st Division with the subjects of drawing and painting,Ph.D (in Fine Arts subject) and 5 year diploma in Commercial Arts.Admittedly, he does not possess the qualification of M.A. (Education) withB.Ed or Masters Degree with M.Ed. as required under sub-clause (a). Ofcourse, he had teaching experience of 26 years as lecturer.
The learned senior counsel for the appellant, Shri G.L. Sanghi, has putforward, in the first instance, a new contention harping on sub-clause (c)which, for the sake of ready reference, is repeated hereunder:
"(c)-Provided that if a candidate possessing thequalification as at (b) is not available or not consideredsuitable, the College on the recommendation of theSelection Committee may appoint a person possessingthe qualifications as at (a)."
According to Shri G.L. Sanghi, sub-clause (c) lays down a rule of preferenceand if a candidate with M.Phil or Ph.D is available, it enjoins that such acandidate should necessarily be appointed. As the appellant possessesPh.D. Degree which is a recognized Degree beyond the Masters' levelwithin the meaning of sub-clause (b) and he fulfils the teaching experiencecriteria, he is eligible for appointment irrespective of the fact that he doesnot have one of the qualifications set out in sub-clause (a). The learnedcounsel wants to read sub-clauses (a) and (b) as alternative qualificationsand the qualification in (b) prevailing over those in (a). Such argument, inour view, ignores the conjunctive expression 'and'. There is no compellingreason to read the word 'and' as 'or'. In our view, the reasonable andharmonious way of construing sub-clause (c) is this : in order to geteligibility for selection to the post of Principal, one of the two academicqualifications set out in (a) i.e. M.A. (Education) with B.Ed. or MastersDegree in any subject with M.Ed. is necessary. In addition thereto, thequalification in (b) should also be fulfilled in the normal course. That is tosay, a candidate in addition to the academic qualification in sub-clause (a)should have M.Phil Degree or a recognized Degree beyond the Masters'level or published a research-level work. However, in case such a candidatehaving both the qualifications is not available or is otherwise foundunsuitable, the option is left to select a candidate fulfilling the qualificationslaid down in (a) only. That, in our view, is the plain meaning of sub-clause (c) and we agree with the submission made by Mr.R.Dwivedi, thelearned Senior counsel for Respondent No.1 in this regard.
We cannot, therefore, read Clause (c) as laying down any rule ofpreference in favour of a candidate having M. Phil or Ph.D qualification,but it is only a provision enabling the appointment of a candidate without thequalification specified in (b) i.e. M. Phil or a Master's level degree beyondthat which may include Ph.D. In fact, the interpretation which is sought tobe placed on behalf of the appellant was never placed by the University. Onthe other hand, the University was only harping on the purported power ofrelaxation. It was only for the first time in the course of the arguments, thelearned counsel for the University made an endeavour to support thisargument advanced by the learned Counsel for the appellant.
We shall now turn our attention to the next contention regardingrelaxation of qualification which loomed large before the High Court. Thestand of the appellant and the University is that the academic qualificationprescribed as well as minimum marks in Masters' Degree could be relaxedin appropriate cases, whereas the stand of the first respondent is thatrelaxation is contemplated in relation to percentage of marks only. Theprovision for relaxation is contained in the bracketed portion immediatelyfollowing sub-clause (a) to Note II of the Ordinance quoted supra. The sameprovision is also found in Advertisement No.2 of 1990 which is the first inthe series. Two questions arise here : (1) Whether the power to relaxeducational qualification is vested with the competent body/authority? (2)Factually, was there relaxation? If so, by a competent body or Authority?
The answer to first question turns on the ambit and amplitude ofrelaxation clause. It seems to us that the interpretation placed by theUniversity body in its resolution dated 22.9.1993 is a reasonably possibleview, going by the plain language and the contextual setting of relaxationprovision. Such provision for relaxation could have been thought of to openup opportunities to the lecturers of long standing and creditable record whomay be deficient in one of the prescribed qualifications, whatever may be thewisdom behind it. For instance, a candidate under consideration has at leastB.Ed. qualification. There is no serious dispute that the requirement ofM.Ed. degree could be relaxed. The wide scope of the relaxation provisionwas recognized by the University authorities even in the year 1990 and thatis why the proposal was placed before the Executive Council to curtail itsscope so as to limit the relaxation to marks only. The Executive Councilapproved the same on 23.11.1990 and decided to amend the Ordinance. Wehave not been enlightened as to what further happened. No one has pleadedthat the relaxation clause was amended as per the resolution. In theOrdinance which we extracted above, the same provision in widely couchedlanguage exists. One point we would like to make clear is that we are notconcerned here with the propriety of reserving the power to relax the basiceducational qualification in a given case because such provision has not beenattacked as ultra vires the Constitution or Statute. We need not, therefore,test it from the angle of Articles 14 and 16. We are concerned here with thelimited aspect of existence or otherwise of the power to relax qualifications,on the basis of the relaxation clause, as it stands.
Coming to the second question, the first document to be referred to isAnnexure R-5 to the counter of 1st respondent which is a Note circulated tothe Executive Council which met on 31.7.1998 to take a decision on agendaitem No.62 pursuant to the direction given in C.W.P. No. 351/98. Therein it is mentioned that the appellant was called for interview on the orders ofVice-Chancellor issued on 15.12.1995 keeping in view the decision of theExecutive Council recorded in resolution No.28 dated 22.9.1993. The saidresolution dated 22.9.1993 reads as follows :-
"The Executive Council considered therepresentation of Shri S.K. Kushwaha, lecturer inArts and Craft, University College of Education,and resolved that he is eligible to appear before theselection committee in terms of the advertisementas published in February 1990. He is an approvedlecturer of the recognised college. The termrelaxation as used in this advertisement is notrestricted to percentage of marks only asinterpreted by the then executive Council in itsresolution No.82 dated 23.11.90, but has anextended meaning covering entire essentialqualifications as listed in Clause (a) of thisadvertisement".
The High Court was of the view that this resolution has no relevance tothe advertisement No.10 of 1995. That, in our view, amounts to takinga narrow view of the scope of the resolution. Though the resolutionrefers to the 'terms' and 'qualifications' stipulated in the advertisementof February 1990, it holds good for the selections held subsequent tothat date also so long as the conditions of eligibility and qualificationsprescribed are the same. A xerox copy of the advertisement No.2 of1990 has been filed by the counsel for the University. The fact that thequalifications in the advertisement of 1990 and the presentadvertisement of 1995 are the same admits of no doubt. It isspecifically mentioned so in the note placed before the ExecutiveCouncil for its meeting held on 31.7.1998. In this fact situation, if thepower of relaxation was exercised once, the benefit of such relaxationwill enure to the appellant in relation to the subsequent advertisementalso for the reason that the qualifications did not change and secondlythe selection did not materialise for one reason or the other. However,going by the language of the resolution, a doubt arises whether theExecutive Council, which is undisputedly the competent authority, hadin fact relaxed the M.Ed. qualification in the case of the appellant. Theresolution dated 22.9.1993 merely sets out the wider scope of therelaxation clause. It does not say anything more than that. Thestatement in the resolution that the appellant is eligible to appear beforethe selection committee does not necessarily imply that the power ofrelaxation of educational qualification was in fact exercised. Therelevant record only could bear testimony to that fact. There is anotherallied aspect. Even if factum of relaxation before or at the time ofpassing the resolution dated 22.9.1993 is not established, it would stillbe necessary to enquire whether the relaxation was given by competentauthority in December 1995 when the appellant was called forinterview on the orders of the Vice-Chancellor. In this connection,what is stated in the concluding para of the communication dated3.9.1998 addressed to the first respondent deserves notice. It is saidtherein : "in view of the resolution of the Executive Council thisqualification was relaxable and accordingly he was considered andselected by the Establishment Committee by relaxing the qualificationof M.Ed". Prima facie it indicates that the Establishment Committeerelaxed the qualification. But, the Establishment Committee whichwas incharge of selection cannot usurp the power of relaxation whichis vested in the Executive Council. Therefore, it has to be seen withreference to the record whether there was relaxation in December 1995before the appellant was called for interview and if so, such relaxationwas given by the Executive Council, after applying its mind to thefactors justifying relaxation. It is made clear that in case there was duerelaxation in September 1993 by the Executive Council, it isunnecessary to probe into question of relaxation in December 1995.
To summarise, we hold that the appellant cannot take refuge undersub-clause (c). He lacks one of the qualifications prescribed in sub-clause(a), namely, M.Ed. At the same time, we have held that the ExecutiveCouncil was empowered to relax the educational qualification but notmerely the requirement as to minimum percentage of marks. We haveexpressed a doubt on the question whether the power of relaxation was infact exercised in favour of the appellant by the competent authority eitherduring 1993 or 1995, after applying its mind to the factors warrantingrelaxation. That fact has to be verified with reference to records andadditional pleadings if any. The validity or otherwise of the Ordinanceconferring power to relax one of the educational qualifications is left open.
Finally, we must advert to the contention raised by the learnedcounsel for the appellant that the delay on the part of the first respondentand his conduct disentitled him for relief under Article 226 of theConstitution and the High Court at the instance of the first respondentshould not have gone to the extent of setting aside the appointment madelong back. It is pointed out that the first respondent filed the writ petitionnearly one year after the appointment of the appellant though he was wellaware of such appointment. It is submitted that even though the firstrespondent was on study leave for some time he was regularly visiting theUniversity campus and therefore he must have been aware ofdevelopments. Moreover, it is contented that the first respondent beingfully aware of the decision of the University relaxing the qualifications asearly as in 1993 did not challenge that resolution all these years. On theother hand, having participated in the selection process and failed to getselected, he started the present litigation. The learned senior counsel for the first respondent, Shri R. Dwivedi, countered this contention mainly onthe ground that this objection was not raised before the High Court and,therefore, the High Court did not have occasion to consider the same.Learned counsel submits that it is not open to the appellant to raise thisissue of delay and latches at this point of time. We find from the pleadingsthat the appellant did raise the question of delay and latches on the part ofthe first respondent. As the case is being remitted to the High Court forconsideration of the points set out above, we feel, it will be appropriate for the High Court to consider this aspect as well. Whether or not there wasunexplained delay and, if so, whether it will have effect on the ultimateorder that the High Court is inclined to pass will have to be considered bythe High Court. We do not propose to express any view on this aspect. It is needless to point out that in case the finding of the High Court on theissue relating to relaxation is in favour of the appellant, no further questionarises.
For the reasons aforesaid, we set aside the judgment of the HighCourt and remit the matter to the High Court for fresh consideration in thelight of the declaration of law and the observations made in the judgment,as expeditiously as possible. The appeal is thus allowed. No costs.