Hon'ble Arvind Kumar Mishra-I,J.
Heard Sri R.K. Ojha, Senior Advocate on behalf of the petitioner, Standing Counsel on behalf of respondent no.1, Sri Neeraj Tripathi, advocate on behalf of respondent no.2, Sri U.N. Sharma, Senior Counsel assisted by Sri Neeraj Tiwari, advocate on behalf of respondents no.3 and 4.
The petitioner before this Court seek quashing of the order dated 03.03.2014 passed by the Chancellor, Bundelkhand University, Jhansi i.e. the Governor of the State of Uttar Pradesh as well as the consequential order dated 07.03.2014 issued by Registrar, Bundelkhand University, Jhansi in compliance thereof (annexure nos.10 & 11 to the writ petition respectively).
The facts in short giving rise to the present writ petition are as follows:
The Bundelkhand University, Jhansi is a University established under the provisions of the U.P. State Universities Act, 1973 (hereinafter referred to as the Act 1973). The University is said to have published advertisement for making appointment on the post of Professor in the year 2002 being Advertisement No.3/2001. This advertisement did not include any post of Lecturer in the department of Geology.
The petitioner applied in response to the advertisement. A Selection Committee in accordance with Section 31 sub-section 4 of the Act 1973 was constituted which included two experts nominated by the Chancellor of the University. The Selection Committee did not find the petitioner suitable for the post of Professor but surprisingly, it is alleged that the Selection Committee recommended that the petitioner may be appointed on the post of Lecturer. The post thereof was not subject matter of the advertisement. This recommendation was acted upon by the University and the petitioner is said to have been appointed as Lecturer vide order dated 28.02.2002.
It appears that there was another advertisement published by the University for the post of Reader in the subject of Geology being Advertisements No.2 of 2002 and 3 of 2002. The vacancy for the post of Reader in the subject of Geology was reserved for the other backward class category to which the petitioner belongs. The Selection Committee is said to have held selection and to have recommended the name of the petitioner for appointment as Reader vide its recommendation dated 30.01.2003. This recommendation of the Selection Committee for appointment of the petitioner as Reader was accepted by the Executive Council of the University in its meeting held on 01.02.2003. This resulted in the issuance of appointment letter in favour of the petitioner. The petitioner joined and continued to function as Reader in terms of the said appointment letter. He was also granted benefit of career advancement scheme and promoted as Professor.
It appears that certain complaints were received by the Chancellor of the University in respect of the appointment of the petitioner. The Chancellor under Section 68 (a) of the Act 1973 decided to exercise suo motu power having regard to seriousness of the allegations made. The Chancellor issued notice to the University as well as to the petitioner to show cause in the matter of his appointment as Reader and Lecturer both being illegal. The University in response to the notice produced the original records. The petitioner also submitted his reply which has been examined in detailed by the Chancellor under the order impugned dated 03.03.2014.
It has been recorded that appointment of the petitioner as Lecturer in terms of Advertisement No.5 of 2001 was patently illegal, as no post of Lecturer in the subject of Geology was included under the advertisement. Therefore, appointment against the non-advertised vacancy was illegal.
The appointment on the post of the Reader in the subject of Geology in terms of Advertisements No. 2 of 2002 and 3 of 2002 was also illegal for the following reasons; (a) the Selection Committee for appointment of Reader in the University has to be constituted in accordance with the provisions of Section 31 sub-clause 4 i.e. it has to be comprise of two experts to be appointed by the Chancellor amongst others; (b) neither any request was received from University for appointment of two experts for constituting the Committee in response to the aforesaid Advertisements No.2 of 2002 and 3 of 2002 nor any expert in accordance with Section 31 (4) of the Act was appointed by the Chancellor. Therefore, the constitution of the Selection Committee which selected the petitioner itself was patently illegal; (c) the Vice Chancellor for the reasons best known to him had constituted the same Selection Committee which had earlier recommended the petitioner for the post of Lecturer when the post advertised was that of Professor. Therefore, the Chancellor has recorded his satisfaction that the Vice Chancellor had not acted fairly in the matter of the constitution of the Selection Committee which selected the petitioner.
So far as the findings recorded on the issue of the appointment of the petitioner as Lecturer in terms of Advertisement No.5 of 2001 is concerned, nothing much could be added by the counsel for the petitioner. He fairly conceded that in absence of the post of Lecturer in the subject of Geology being included in the Advertisement No.5 of 2001, there could have been no recommendation by the Selection Committee for appointment of the petitioner as Lecturer. If the petitioner was not found suitable for the post of Professor, the Selection Committee should have closed the selection after recording its satisfaction to that effect.
We find that the reasons assigned by the Chancellor in the order impugned for coming to the conclusion that the appointment of petitioner as Lecturer against non-advertised post was illegal does not warrant any interference from this Court under Article 226 of the Constitution of India.
We may record that repeatedly the Apex Court has held that there can be no appointment against non-advertised vacancy and any attempt to the contrary would be in violation of Article 14 of the Constitution of India. Reference Renu and others Vs. District & Sessions Judge, Tees Hazari & others in Civil Appeal No.979 of 2014 decided on 12.02.2014.
Now turning to the issue of appointment of the petitioner as Reader. At the very outset we may record that Section 31 (1) of the Act 1973 as applicable on the relevant date provides that the teachers of the University and the teacher of an affiliated or associated college shall be appointed by the Executive Council on the recommendation of the Selection Committee in the matter hereinafter specified. Meaning thereby that all other modes of appointment except on the recommendation of the Selection Committee constituted under the Sub-clause of Section 31 of the Act 1973 is barred. Any infraction in the matter of the constitution of the Selection Committee as provided under Section 31 (4) would render the appointment contrary Section 31 to the U.P. State Universities Act, 1973, therefore, patently illegal.
It would be worthwhile to reproduce Section 31 (1) and Section 31 (4) of the Act 1973 which read as follows:
31. Appointment of Teachers.-(1) Subject to the provisions of this Act, the teachers of the University and the teacher of an affiliated or associated college (other than a college maintained exclusively by the State Government [* * *] shall be appointed by the Executive Council or the management of the affiliated or associated college, as the case may be, on the recommendation of a Selection Committee in the manner hereinafter provided [The Selection Committee shall meet as often as necessary] 31 (4) (a) the Selection Committee for the appointment of a teacher of the University (other than the Director of an Institute and the Principal of a constituent college), shall consist of-
(i) the Vice-Chancellor who shall be the Chairman thereof,
(ii) the Head of the Department concerned:
Provided that the Head of the Department shall not sit in the Selection Committee, when he is himself a candidate for appointment or when the post concerned is of a higher rank than his substantive post and in that event his office shall be filled by the Professor in the Department and if there is no Professor by the Dean of the Faculty:
[Provided further that where the Chancellor is satisfied that in the special circumstances of the case, a Selection Committee cannot be constituted in accordance with the preceding proviso, he may direct the constitution of the Selection Committee in such manner as he thinks fit.]
(iii) in the case of a Professor or Reader, three experts, and in any other case, two experts be nominated by the Chancellor;"
It is apparently clear that the Selection Committee for the selection on the post of teachers in the University, which would include the post of Reader, has to comprise of three experts to be nominated by the Chancellor.
It is admitted on record that so far as the Selection Committee constituted with reference to Advertisements No.2 of 2002 and 3 of 2002 for the post of Reader in the department of the Geology is concerned, neither the University asked for names of the three experts to be nominated for the Selection Committee nor in fact any experts were nominated by the Chancellor for the Selection Committee to be constituted. In absence of Selection Committee having been constituted in terms of Section 31 (4) of the Act, 1973, any recommendation by the unauthorized Selection Committee would be of no legal consequence. Therefore, appointment of the petitioner even if accepted by the Executive Council would be contrary to Section 31 of the Act 1973, therefore, per se void.
From the order of Chancellor, we further find that he is correct in recording that the Vice Chancellor, Bundelkhand University, Jhansi could not have constitute the Selection with reference to Advertisements No.2 of 2002 and 3 of 2003 as was done in the facts of the case. He is also right in recording that the Vice Chancellor deliberately constituted the same Selection Committee which had recommended the petitioner for appointment as Lecturer when no such post had been so advertised under Advertisement No.5 of 2001. The inference drawn by the Chancellor is more than justified.
We, therefore, see no reason to interfere with the order of the Chancellor wherein he has held the appointment of the petitioner as Lecturer in the year 2002 and Reader in the year 2003 in the subject of Geology was illegal being in the teeth of the statutory provision of Section 31 of the U.P. State Universities Act, 1973.
We will now examine the issues which has been canvassed by Sri R.K. Ojha, Senior Advocate on behalf of the petitioner; (a) that the power of the Chancellor to act suo motu under Section 68 of the Act is hedged with the condition that he cannot entertain any such grievance after expiry of three months from the date when the question could have been raised for the first time; (b) that absolutely no special satisfaction was recorded in the order by the Chancellor for exercise of his suo motu power.
For consideration of the aforesaid two contentions raised on behalf of the petitioner, it is worthwhile to reproduce Section 68 of the Act 1973 which reads as follows:-
68. Reference to the Chancellor.- If any question arises whether any person has been duly elected or appointed as, or is entitled to be, member of any authority or other body of the University, or whether any decision of any authority or officer of the University [including any question as to the validity of a Statute, Ordinance or Regulation, not being a Statute or Ordinance made or approved by the State Government or by the Chancellor)] is in conformity with this Act or the Statutes or the ordinance made thereunder, the matter shall be referred to the Chancellor and the decision of the Chancellor thereon shall be final :
Provided that no reference under this section shall be made-
(a) more that three months after the date when the question could have been raised for the first time;
(b) by any person other than an authority or office of the University or a person aggrieved :
Provided further that the Chancellor may in exceptional circumstances-
(a) act suo motu or entertain a reference after the expiry of the period mentioned in the preceding proviso;
(b) where the matter referred relates to a dispute about the election and the eligibility of the person so elected is in doubt, pass such orders of stay as he thinks just and expedient;"
From simple reading of Section 68 of the Act, it is apparently clear that limitation of three months' period from the date the question could be raised as well as person raising the objection answering with description of the aggrieved person are both relateable to a reference to be made by a third person. These conditions relateable to the exercise of suo motu power of the Chancellor. Therefore, we are inclined to hold that so far as the exercise of suo motu power by the Chancellor is concerned, neither any limitation is prescribed under Section 68 of the Act nor first proviso has any applicability in that respect.
So far as the issue of recording of reasons disclosing the exceptional circumstances for exercise of suo motu power is concerned, we may record that it is not necessary that the Chancellor should specifically so mention in the order itself, as to what exceptional circumstances require him to act if exceptional circumstances can be easily ascertained from the order itself.
From the order, we find that certain complaints were received in the matter of illegal appointment of the petitioner and the Chancellor had written a letter as early as on 24.01.2011 to the Vice Chancellor to submit his comments and records in the matter of appointment of the petitioner. It took three years for the University to respond and the records were made available to the Chancellor only on 09.01.2014.
We may record that the Chancellor is the Head of the Universities established under the provisions of the U.P. State Universities Act 1973. It is his primarily responsibility to see that the provisions of the Act are carried out in letter and spirit. If a Vice Chancellor of such a University decides to act contrary to the Act 1973 to make an appointment dehors the same, the Chancellor must act and if the Chancellor acts, this Court will not interfere.
Even otherwise if substantial justice against technical objection are pitted against each other interest of substantial justice must prevail. Universities are institutions of learning and if illegal appointments are permitted to be perpetuate in such institutions, only God can save the education in the State. If the Vice Chancellor who is the Chief Executive of the University himself acts unfairly as has been noticed by the Chancellor in the order impugned, this Court will not interfere with the order of the Chancellor which has the effect of curing the said illegality.
Now turning to the other issue which has been raised by Sri R.K. Ojha, Senior Advocate on behalf of the petitioner, namely that the petitioner as on date has worked for nearly 12 years as Lecturer and, therefore, this Court may interfere with the order of the Chancellor which has set aside his appointment as Reader only because of the illegality in the constitution of the Selection Committee specifically in the circumstances when the petitioner had no role to play in the constitution of the Selection Committee by the Vice Chancellor. He submits that the experts did participate in the selection.
It is the settled principle of law that if law requires something to be done in a particular manner it has to be done in that manner or not at all. Privy Council in Nazir Ahmad v. King Emperor; AIR 1936 PC 253 laid down the dictum that when a statute requires a thing to be done in a particular manner, it must be done in that manner or not at all. The Hon'ble Apex Court has reiterated and followed the aforesaid dictum in a catena of cases and one of the recent judgment in Commissioner, Income Tax, Chandigarh v. Pearl Mechanical Engineering and Foundry Works Pvt. Ltd. A Constitution Bench of the Hon'ble Apex Court in Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and Ors. reaffirmed the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the same itself.
If Section 31 (4) of the Act requires the Selection Committee for the post of Reader of the University to comprise of three experts to be nominated by the Chancellor then no other Selection Committee can be constituted which does not include such nominees from the Chancellor.
We, therefore, find no substance in the contention raised on behalf of the petitioner.
Although we are of the opinion that it is hard to remove the petitioner because of the fault committed by the University in the matter of the constitution of the Selection Committee after more than 12 years of the alleged selection but hardship to the petitioner cannot be a ground to permit illegal appointments. We may not direct recovery of the salary paid to the petitioner because of his illegal appointment but his continuance will not be perpetuated by this Court any further.
So far as the plea that other appointments of like nature are being permitted by the University to continue and no action has been taken against them is concerned, we clarify that having received the order of the Chancellor now which has clarified the position with regard to the constitution of the Selection Committee and effect on selection made with reference to illegally constituted Selection Committee, the University must revisit all such appointment which has been made contrary to Section 31 of Act and shall deal with him uniformly without any favoritism.
Learned counsel for the petitioner has placed reliance upon Section 66 of the Act for submitting that even if certain unauthorized person has taken part in the Selection Committee, proceedings may not be invalid. The contention has only been raised on behalf of the petitioner to be rejected. The constitution of the Selection Committee with experts to be nominated by the Chancellor is statutory requirement and if no expert were asked for or appointed by the Vice Chancellor, it cannot be said that there was a defect covered by Section 66 (b) of the Act.
For the reasons recorded above, the writ petition is dismissed.
Order Date :- 25.3.2014 rkg