Full Judgment Text
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PETITIONER:
DR. MAHAK SINGH DR. RAJVIR SINGH
Vs.
RESPONDENT:
CHANCELLOR, CH.CHARAN SINGHUNIVERSITY, MEERUT AND OTHERS
DATE OF JUDGMENT: 31/10/1996
BENCH:
N.P. SINGH, S.B. MAJMUDAR
ACT:
HEADNOTE:
JUDGMENT:
WITH
CIVIL APPEAL NO 4616 OF 1996
J U D G M E N T
MAJMUDAR,J
These three appeal arise out of a common judgment
rendered by a Division Bench of the High Court of Judicature
at Allahabad in different writ petitions made by the common
appellant Dr. Mahak Singh in Civil Appeal Nos, 4613-4614 of
1996 and by one of the writ petitioners Dr. Rajvir Singh,
appellant in companion Civil Appeal No.4616 of 1996. These
appeals project a common controversy of a triangular nature
amongst three contestant-teachers attached to Janata Vaidic
(Post Graduate) College. Baraut in Uttar Pradesh which is a
degree collage affiliated to the Meerut University. The
contestants are Dr. Mahak Singh on the one hand who is the
appellant in first two appeals and respondent No.3 in these
appeals Dr. S.P. Singh as well as respondent NO.5 Dr. Rajvir
Singh in these two appeals who in his turn appellant in the
companion Civil Appeal No.4616 of 1996. All the three of
them claimed to be entitled to work as incharge-Principal of
the said Degree Collage on the ground that each one of them
was the senior most teacher. The High Court in its common
impugned judgement has taken the view that out of the three
contestants, common respondent No.3 in these appeals ,
namely, Dr. S.P. Singh is entitled to work as Acting
Principal till regular Principal is appointed in the college
by following the due procedure or law. This conclusion to
which the High Court reached is on the basis that amongst
the three contestants he is the senior most. This is
seriously brought in challenge by the common appellant in
the first two appeals Dr. Mahak Singh. His learned counsel
Shri Prashant Bhushan submitted that Dr. Mahak Singh is the
senior most lecturer and hence entitled to be considered for
being appointed as Acting Principal while learned counsel
for respondent No.5 submitted in support of his companion
appeal that Dr. Rajvir Singh is entitled to the said post.
Learned counsel for common respondent No, .3 on the other
hand submitted that the High Court has rightly taken the
view that respondent No.3 is the most eligible candidate for
the purpose.
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In order to resolve this triangular controversy a few
relevant facts leading to these proceedings are required to
be noted at the outset. Earlier the college in which these
three contestants are working as senior lecturers was
affiliated to Agra University under the Agra University Act,
1926. The said college was, the therefore, governed by the
provisions of the said act and the statute framed thereunder
form the very beginning till 1.7.1965. The Kanpur and
Meerut University Act was enforced with effect from
1.7.1985. As a result thereof the said college got
affiliated to Meerut University. Since no statute of Agra
University. Consequent upon the framing of the Statutes of
Meerut University 26.9.68, the college was thereafter
governed by the said Statutes, The senior most of teacher
of affiliated colleges was governed by Statute No.11.34 of
that University. U.P. State Universities Act, 1973 came in
to force with effect from 2.9.73. Since no statutes of the
Meerut University continued to govern the service conditions
of the teachers of affiliated college. First Statutes of
the Meerut University were framed under U.P. State
Universities Act, 1973 which came in to force from 1.5.77.
For the purpose of determining the seniority of teachers
Chapter XVIII of these statutes became applicable with
effect form 1.5.77. It is not in dispute that the rate
these statutes to which we will make a detailed reference at
an appropriate stage.
The service Bio-Data of the aforesaid three contestants
run as under:
The appellant in Civil Appeal Nos.4613-4614 of 1996,
Dr. Mahak Singh was ap[pointed on 9.7.59 as lecturer in
Agronomy in the grade of Rs.225-450 for teaching degree
classes in the aforesaid college. On 6.11.1963 he was
appointed as Head of the Department (Post Graduate College)
in the grade of Rs.350-800. ON 1.1.86 he was designated as
Senior Lecturer in the grade of Rs.3700-5700.
Dr. S.P.Singh, common respondent No.3 was appointed on
9.7.59 as lecturer in the same college for teaching post
graduate classes in the subject of Economics in the grade of
Rs.250-500. On 6.11.63 he was designated as Head of the
Department, Post Graduate Classes in the grade of Rs. 350-
800. On 1.1.1986 he was granted the grade of senior
lecturer i.e. Rs.3700-5700.
Dr. Rajvir Singh, respondent No.5 in the first two
appeals and appellant in the companion appeal No.4616 of
1996 was appointed as post graduate lecturer in the
aforesaid college on 9.7.61 in the grade of Rs.250-500 in
D.A.V. College, Muzaffarnagar in the subject of Geology. On
25th August, 1964 he was appointed and designated as Head of
the Department Post Graduate Classes in the grade of Rs.
350-800 in the college to which the other two contestants
belonged. It appears that his service tenure in the same
college underwent rough weather. Even though he was
designated as Head of the Department on 9.7.66 in the grade
of Rs.700-1100, subsequently his services were terminated on
7.5.69 and said termination order was set aside on 31.1.73
and thereafter he joined as lecturer in the same college in
the grade of Rs.700-1600. On 1.1.1986 he was granted grade
of Rs. 2200-4000. The said grade was that of a lecturer.
He was designated as a senior lecturer in the grade of Rs.
3700-5700 with effect from 31.1.1986.
The aforesaid Bio-Data of the three contestants is well
borne out from the record of the case and has been treated
by the High Court to be well established. However, learned
counsel for respondent No. 5 in these two appeals Dr. Rajvir
Singh vehemently contended that his client should be
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considered to have been appointed as a senior lecturer in
this very college not form 31.1.1986 but from 1.1.86, he
should have made such a grievance at the relevant time.
Years rolled by still he never made a grievance about the
same and accepted the decision that the was to be designated
as senior lecturer only from 31.1.86. Subsequently,
therefore when vacancy of Principal arose in, 1993 when the
then Principal Dr. P.S. Malik, retired and when the question
of appointed of an Acting Principal arose it was too late
Dr. Rajvir Singh to contend after seven years that he should
have been treated to be a senior lecturer form 1.1.86 and
not from 31.1.86. We must, therefore proceed on the basis
that appellant Dr. Mahak Singh and respondent No.3 were
designated as senior lecturer from 1.1.86 while respondent
No.5 Dr. Rajvir Singh was rightly designated as the senior
lecturer from 31.1.86. In the background of this service
bio-data of all the three contestants, the short question
which arises for our consideration has to be resolved. The
relevant stature for resolving this controversy is 13.20.
It is not in dispute the parties that the said statute held
the field when the vacancy of the Principal of the college
occurred on 30th June, 1993. The said stature reads as
under:
13.20:- When the office of the
Principal of an affiliated college
falls vacant, the Management may
appoint any teacher to officiate as
Principal for a period of three
months or until the appointment of
a regular Principal, whichever is
earlier. If on or before the
expiry of the period of three
months, any regular Principal does
not appointed, or such a Principal
does not assume office, the senior-
most teacher in the college shall
officiate as Principal of such
college until a regular Principal
is appointed.
It is not in dispute between the parties that the
office of the Principal of college to which all the three
contestants belonged fell vacant form 1st July, 1993 and on
the expiry of three months form that date no regular
Principal came to be appointed. It is pertinent to note
that even till date no regular Principal has become
available to take over the charge of the college as
Principal. We are told that the relevant recruiting agency
for the said purpose has already selected a candidate for
the said post who is other than any of contestants before
us. But even his appointment is held up because of a
pending litigation in Allahabad High Court. Be that as it
may a situation has emerged and has continued to operate qua
the college in question, wherein Statute 13.20 has continued
to operate all through out till date. It is, therefore,
necessary to find out as to who is the senior-most teacher
in this co amongst the three contestants who can legally
officiate as Principal of the college which is an affiliated
college. Stature 11.34 in Part V of the statute with
seniority of teacher in affiliated colleges would become
relevant for exercise, it reads as under:
11.34:- Subject to the provision of
this Statute the seniority of
teachers in a particular college
shall be determined by the length
of service in that college in the
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same cadre and by the same grade.
For applicability of this statute it has to be found as
to who was the senior-most teacher in his college belonging
to the same cadre and having the same grade and having the
same grade of pay when the vacancy of Principal arose on the
expiry of three months from 1st July, 1993 i.e. from 1st
October .1993. It is sen form the aforesaid service bio-
data of all the three contestants that all of than were
working in the grade or senior lecturers and were drawing
the same emoluments in the grade of Rs.3700-5700 on
1.10.1993. Then the next question arises as to who was the
senior-most amongst them in cadre of senior lecturers in
this college. So far as contestant Dr. Rajvir Singh is
concerned the answer is obvious. He was designated as
senior lecturer form 31.1.86 as compared to the common
appellant Dr, Mahak Singh and the common respondent No.3 Dr,
S.P. Singh. He naturally, therefore, gets weeded out by
these two seniors of his in the cadre of senior lecture as
both of them were senior to him by atleast 30 days on the
Principal of continues officiation as senior lecture . That
removes Dr. Rajvir Singh from the array of contest for the
post of Acting Principal on the combined operation of
Statutes 13.20 and 11.34. However, strong reliance was
placed by learned counsel for Dr. Rajvir Singh on Statute
13.05 read with statute 18.16 which read as under:
"18.05:- The following rules shall
be following in determining the
seniority of teachers of the
University-
(a) A Professor shall be deemed
senior to every Reader, and a
Reader shall be deemed senior to
every Lecturer.
18.16:- The provisions of Statutes
18.01, 18.02 18.05 and 18.08 shall
mutatis mutandis apply to the
teachers and Principals of
affiliated colleges as they apply
to the teachers of the University."
On the basis of three statutes it was submitted on
behalf of Dr. Rajvir Singh that even though the relevant
statutes round in Chapter XVIII with seniority of teacher of
University atleast Statute 18.05 would mutatis mutandis
apply to the teachers and principal of affiliated college to
which all the three contestants belonged. to that extent he
is right. However, the question is whether in the college
to which the contents to belonged where the of Principal
occurred, was was there any reader who could rank senior to
a lecturer so that Statute 18.05 could be effectively
pressed in service by Dr. Rajvir Singh. The said question
is to be answered in the negative for the simple reason that
on the date on which the vacancy of Principal occurred, as
aforesaid, Dr. Rajvir Singh had no longer remained a reader
but he was designated as a senior lecturer. IN part he
might have been a reader but it became a matter of history
for him as though he was designated as reader and Head of
the Department on 9.7.66 with passage of two decades by 1986
he became a lecturer from 1.1.86 and became a senior
lecturer only from 31.1.86. Consequently Statute 18.05
cannot be of any assistance to him. This conclusion of ours
will put Dr. Rajvir Singh, appellant in Civil Appeal No.4616
of 1996 out of contest and his appeal would be liable to
fail.
Then remain in the field of contest, the common
appellant Dr. Mahak Singh and the common respondent No.3 Dr.
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S.P. Singh whose claim has found favour with the High Court.
So far as this contest is concerned, it must at once be
stated agreeing with Shri Prashant Bhushan, learned counsel
for the appellant, Dr. Mahak Singh that his client became a
lecturer form 9.7.59 on a regular vacancy while respondent
No.3 who was appointed as lecturer on 9.7.59 was admittedly
unqualified to be appointed as such on regular basis and he
was granted relaxation of educational qualifications only
15th April, 1960 by the Executive Council of the University.
Therefore he can be said to have become a regular lecturer
only from that date. It is well settled that if a person is
appointed irregularly on a post and if he is regularised
later on his initial appointment would be treated as void
and he wi be considered to have been regularly appointed
only from the fate of such regularisation and would be
treated as having entered in service form that date. In
Shitla Prasad Shukla v. State of U.P. and Ors. 1986 (Supp)
SCC 185 in para 9 of the said Report and Bench of two judges
of this Court speaking through M.P. Thakkar. J. had made the
following pertinent observations in this connection:
"There is also one more dimension
of the matter. Though the
appellant was working as a
lecturer, it was not under any
authority of law for there is no
provision which empowers the
college to allow any unqualified
person to teach or to appoint him
as such in anticipation of his
disqualification being removed in
future. Till the exemption was
granted appellant was not even a
teacher in the eye of law though he
was allowed to teach by the
indulgence of the college auth.
The disqualification was removed
only on July 23 1963 when the Board
granted the exemption. How could
he have claimed seniority via-a-vis
respondents 5 and 6 who possessed
the requisite qualification and
became regularly and lawfully
appointed teacher such prior
thereto?
It must, therefore, be held that respondent o. 3 became
a regular lecturer in this college from 16.4.1960 and
Appellant Dr. Mahak Singh on the other hand was a regular
lecturer in this college from 9.7.59 and was, therefore,
senior to him. However we are strictly not concerned with
the initial seniority of these two contestants. We have to
examine a situation that obtained when the vacancy of
Principal arose i.e. on 1.10.1993. On that date the
appellant as well as respondent No.3 were working as senior
lecturers in the same grade from the very same date i.e.
from 1.1.1986. The question therefore arises as to who
between them could be said to be senior so as to be entitled
to be considered for being appointed as Acting Principal as
per Statute 13.20 read within Statute 11.34 as both of them
by that time had equal length of continuous officiation as
senior lecturers and were in the same grade. In this
connection two aspects assume Importance. Firstly between
the two who was senior in the light of the initial entry in
the college as lecturer and secondly who between the two
would be entitled to be considered for the post of Acting
Principal which is a stop-gap arrangement awaiting the duly
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selected Principal. So far as the first aspect is
concerned as we have seen above the appellant was definitely
senior to respondent No.3 as a lecturer. However the more
important question to when the appellant are respondent No.3
were equally placed in the grade of senior lecturers and
were officiating as such form the very same date, who
between them would be entitled to become the Acting
Principal. For answering this question the general bio-data
of both of them apart from their service bio-data would
assure importance especially when we are examining the rival
claims in appeals under Article 136 of the Constitution. So
far as this aspect is concerned for respondent No.3 to the
counter affidavit filed on behalf of respondent No.3 in the
special leave petitions from which these appeals arise. In
paragraph 20 of the said counter, it has been averred that
the credentials of the writ petitioner i.e.(present
appellant) are themselves not impeccable and unimpeachable.
The petitioner (the appellant) has several criminal cases
registered against him in the town of Baraut itself,
including the particulars of which are annexed at Annexure-
C. When we turn to Annexure-C we find the following
particular:
LIST OF CRIMINAL CASES PENDING AGAINST
SHRI MAHAK SINGH IN BARAUT
1. FIR No. 167/82 under section 147/148/149/307/324 IPC
2. FIR No. 185/82 under section 328 IPC
3. FIR No. 282/87 under section 147/148/149/307/302 IPC
4. FIR No. 191/88 under section 147/148/149/307/323/171
IPC
5. FIR No. 196/88 under section 307/34 IPC.
6. Fir No.. 299/80 UNDER SECTION 147/324/323/426 IPC.
Learned counsel for the appellant joined issue on this
aspect and incited our attention to paragraph 8 of the
rejoinder affidavit of the appellant at page 115 of the
paper book which reads as under:
"As regards the respondent’s
attempt to show that the petitioner
has several criminal cases pending
against him, this charge of the
respondent is malicious and
misleading. It is pointed out that
the petitioner has been involved in
public life and has been an M.L.A.
to the Legislative Assembly in
1991. the petitioner, therefore,
has various political rivals who
lodged false complaints against the
petitioner. Gut of the six FIRs
mentioned, the petitioner is aware
of only the first five. Out of
these FIRs at item 1,2,4 and 5, the
charges against the petitioner were
found to he false and there is no
proceedings pending in respect of
the same. At No.3 involves a false
complaint against the petitioner
which was made eight years ago.
The case is still pending for more
than eight years though the charge
against the petitioner is totally
baseless and the petitioner is
accused of offence in the village
at a time when the petitioner was
attending a sports function in the
college."
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It becomes, therefore, clear that from year 1980
onwards the appellant was involved in so many criminal cases
in connection with offences under Indian Penal Code. All
the alleged offences were against human body and they ranged
from alleged offences under Sections 324, 326 and 426 and
extending up to offences under Sections 307, 147, 148, 149
and even Section 302 I.P.C. We may take it as submitted by
the learned counsel for the appellant that out of the listed
six cases in Annexure-C to the counter affidavit of
respondent No.3, the appellant was discharged in all the
cases expect one under Section 302 I.P.C. which is still
pending since number of years. On our further enquiry we
were informed by learned counsel for the appellant as well
as respondent No.3 that the criminal case regarding offence
under Section 302 I.P.C. which is at the stage of evidence
before the Sessions Court, the appellant is accused of an
offence of double murder alleged to have been committed by
inflicting gun shots on the deceased. We are not concerned
with the merits of the said controversy as learned counsel
for the appellant contended that it is totally a false case
foisted upon the appellant by his political rivals as he
was an active political worker who subsequently became a
Member of Legislative Assembly. Be that as it may when the
question arises as to who should be the Acting Principal of
the Degree College wherein apart form administrative duties,
the Principal being the head of the institution has to act
as a model for the students, and especially when both the
appellant and respondent No.3 are equally placed and
situated as senior lecturers drawing the same pay scale and
officiating from the very same day, equity would tilt the
balance against the appellant as admittedly he is at present
facing a charge of double murder under Section 302 I.P.C.
When such is the bio-data of the appellant atleast he can
be said to be under a cloud of a serious criminal charge.
Consequently even assuming that both the appellant and
respondent No.3 are otherwise equally situated form the
point of view of seniority as senior lecturers and that the
initial entry as a lecturer makes the appellant senior to
respondent No.3, even then in our view while exercising
jurisdiction in appeal under Article 136, we would be loath
to give any relief to the appellant so as to entitle him to
work as Acting Principal of the Degree College when he is
facing the charge of double murder. We obviously cannot and
do not express any opinion on his culpability but atleast
this involvement and cloud affect his credentials for being
considered as a suitable candidate for the post of acting
Principal of the college wherein students have to be taught
discipline and are to be equipped with knowledge, expertise
and higher values of life so as to make them better
citizens. For acting as the head of the institution,
therefore, in the light of the aforesaid peculiar facts of
the situation, in our view the appellant would not be
entitled to get the balance titled in his favour even
assuming that he was senior to respondent No.3 initially as
a lecturer. We also make it clear that this assessment is
also confined to the limited question as to who would be
considered senior for the purpose of being appointed as
Acting Principal under statute 13.20. Once the High Court
has taken the view that between the appellant and respondent
No.3, respondent No.3 is entitled to be appointed as Acting
Principal under the said statute, and once we find that the
appellant is not entitled to relief at our hands in view of
the peculiar facts and circumstances in which he is placed
as indicated hereinabove, no case is made out by the
appellant for our interference under Article 138 of the
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Constitution of India in the present proceedings.
As a result of the aforesaid discussion Civil Appeals
No.4613-4614 of 1996 filled by the appellant Dr. Mahak Singh
fail and will stand dismissed. Similarly Civil Appeal
No.4616 of 1996 filled by Dr. Rajvir Singh will also stand
dismissed. In the facts and circumstances of the case,
there shall be no order as to costs in all these appeals.