Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 580 OF 2020
(Arising out of SLP (Civil) No.20859 of 2019)
Governing Body Swami .…Appellant(s)
Shraddhanand College
Versus
Amar Nath Jha & Anr. ….
Respondent(s)
With
Civil Appeal No.581/2020 @ SLP(C) No.20786/2019
J U D G M E N T
A.S. Bopanna,J.
Leave granted.
Signature Not Verified
2. The appellant in LPA No.694/2016 and CM Appln.
Digitally signed by
MADHU BALA
Date: 2020.01.23
14:46:38 IST
Reason:
No.46147/2016 – the University of Delhi is the appellant
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in the appeal arising from SLP(C) No.20786/2019 while
the respondent No.2 in the said LPA – Governing Body of
Swami Shraddhanand College is the appellant in the
appeal arising from SLP(C) No.20859/2019. In both these
appeals the appellants are assailing the judgment dated
09.05.2019 passed by the Division Bench of the High
Court of Delhi. By the said judgment the Division Bench
has upheld the order dated 10.11.2016 passed by the
learned Single Judge and dismissed the appeal
3. The respondent Dr. A.N.Jha was chosen by the
Selection Committee for appointment as the VicePrincipal
of the Swami Shraddhanand College. The same was
approved by the Governing Body and a letter was issued
on 29.12.2015. A communication dated 28.12.2015 was
addressed to the University of Delhi seeking approval for
the appointment made as VicePrincipal. The University of
Delhi however declined approval through its letter dated
13.01.2016. The respondent Dr. A.N. Jha, thus being
aggrieved by the refusal of approval approached the
learned Single Judge of the High Court of Delhi in WP(C)
No.965/2016 seeking that the letters dated 13.01.2016,
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19.01.2016, 27.01.2016 be quashed and direct the
University of Delhi to grant approval for his appointment
as the VicePrincipal of the College. The learned Single
Judge on making a detailed consideration through the
order dated 10.11.2016 allowed the writ petition.
4. In the said process the learned Single Judge has
taken note of the contents in the letter dated 13.01.2016
by which approval was declined by the University mainly
referring to the manner in which the College was
appointing the Acting Principal and further since the
selection of the VicePrincipal was made without seeking
prior approval as mandated under Clause 4(4) of
Ordinance XVIII of the University. The learned Single
Judge therefore took note of the letter dated 13.01.2016
and concluded that the nonapproval by the University
was not justified inasmuch as the same does not record
that he was not fit for the job or was lacking in eligibility
criteria for being appointed as the VicePrincipal. The
reason indicated about noncompliance of Clause 4(4) of
Ordinance XVIII for not approving the appointment was
held unjustified, taking into consideration the procedure
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followed during the earlier appointments when approval
was granted post appointment. Hence, a direction was
issued to the University to grant approval.
5. The University claiming to be aggrieved by such
direction issued by the learned Single Judge filed the LPA
before the Division Bench. The College which is one of the
appellants herein did not choose to file the appeal before
the High Court and assail the order of the learned Single
Judge. The Division Bench apart from noticing the
reasons assigned by the learned Single Judge has also
taken note of the contents of the letter dated 13.01.2016
by which the University had refused approval for
appointment of the VicePrincipal. In that background,
reference was also made to Clause 7(3) of Ordinance XVIII
and the High Court concluded that the same does not
suggest that the post of VicePrincipal cannot be filled up
when the post of regular Principal is vacant.
6. The Division Bench keeping in view the contents of
Clause 7(3) of Ordinance XVIII has arrived at the
conclusion that there is no bar to appoint a person to the
post of VicePrincipal in the absence of a regular Principal.
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In that light the Division Bench on upholding the decision
of the learned Single Judge has also taken into
consideration the fact that the regular Principal had
superannuated way back on 31.12.2014 and there is no
regular Principal appointed till this date and as such
directed that the Governing Body of the College be formed
within one month and a decision be taken in that regard.
7. Shri Sachin Datta, learned Senior Advocate
appearing on behalf of both, the University as well as the
College has taken us through the sequence when one Dr.
Kundra who was the Principal had retired on 31.12.2014.
Subsequently the Principals have been appointed on the
acting basis and at present the senior most Professor Dr.
Prakash Vir Khatri is the acting Principal as there was no
regularly appointed VicePrincipal either. In that regard, it
is contended that the respondent Dr. A.N. Jha even if
appointed as the VicePrincipal cannot act as the
Principal. It is contended that the prayer in the petition
was to quash the communications assailed therein and as
such any further relief for Dr. A.N. Jha to act as the
Principal would not arise. Reference is made to the
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communication dated 2/3 February, 2016 addressed by
the University to the Governing Body of the College
indicating that a Committee is constituted to enquire as to
whether the Governing Body of the College is managing
the affairs in accordance with the Act, Statutes and
Ordinances of the University. The learned Senior
Advocate contends that the said letter has not been
assailed. The communication dated 2/3 February, 2016
is also referred to indicate that the Governing Body of the
College was not appropriately functioning and also the
manner in which Dr. A.N. Jha has been conducting
himself. In that regard, the learned Senior Advocate
would also refer to the minutes dated 29.02.2016 of the
expanded Governing Body of the College wherein the
Governing Body has taken note of the action of Dr. A.N.
Jha. The Resolution at Item No.2 therein is referred, under
which the members have recorded that Dr. A.N. Jha is
illegally holding the post of acting Principal and in that
view recommended the senior most eligible teacher i.e. Dr.
Prakash Vir Khatri to act as the Principal. It is his further
contention that Clause 4(4) of Ordinance XVIII provides
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that the Governing Body is required to secure prior
approval of the University to appoint a VicePrincipal. It is
contended that in the instant case no such prior approval
was taken and as such the University had rejected the
request.
8. Shri A.K. Thakur, learned Advocate representing
the respondent Dr. A.N. Jha, apart from seeking to sustain
the order passed by the learned Single Judge as also that
of the Division Bench of the High Court would submit that
the entire contention put forth by the learned Senior
Advocate for the appellants is misplaced. It is pointed out
from the prayer in the writ petition that the respondent
herein as the writ petitioner on seeking that the
communication rejecting the approval be quashed had
sought that a Mandamus be issued to the University to
accord approval for the appointment of the respondent
herein as VicePrincipal of the College. In that view, it is
contended that the entire case as put forth by the
appellants herein with reference to the appointment of
Principal would not be justified. The entitlement claimed
by the respondent in the writ petition is for appointment
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as VicePrincipal. If in that circumstance a vacancy
remains in the post of Principal and no appointment is
made, certainly the regulations would take care of such
situation and the appellants cannot raise any grouse. It is
contended that the learned Single Judge as well as the
Division Bench has adverted to that aspect and arrived at
a conclusion based on the issue that had arisen for
consideration. In that view, the order passed by the High
Court does not call for interference by urging contentions
which is extraneous to the case put forth by the
respondent herein. Insofar as the appointment of the
respondent as the VicePrincipal, the Governing Body had
taken a decision which was communicated to the
University forthwith. Hence any subsequent decision
taken by the enlarged Governing Body is only with a
malafide intention. In that circumstance, when a
recommendation was made it was for the University to
approve the same. The learned counsel would point out
that the Division Bench of the High Court in para 6 of its
order has taken note of all prior appointments made to the
post of VicePrincipal where, in most of the cases the
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approval has been granted post facto . In that view, it is
contended that these appeals are liable to be dismissed.
9. In the light of the rival contentions we have
perused the appeal papers. At the outset it is necessary to
observe that a consideration in these proceedings would
be based on the case that has been put forth by the writ
petitioner to the extent of the relief claimed therein and in
that light the consideration as made by the High Court
both by the learned Single Judge and the Division Bench
is to be noted to decide the correctness or otherwise of the
concurrent view taken by the High Court. To that extent,
as pointed out by the learned counsel for the respondent
herein, it is seen that the respondent herein as the writ
petitioner had assailed the communications by which the
University had declined approval to the post of Vice
Principal in the appellant College. Having done so, the
consequential relief was sought to direct the University by
issue of Mandamus to accord approval to the appointment
of petitioner as VicePrincipal of the College. Though the
learned senior advocate for the appellants had contended
that the letter dated 2/3 February, 2016 has not been
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challenged in the writ petition, the same would not be of
any adverse consequence in the situation where the
respondent herein was before the Court limited to his
grievance and the relief sought in that regard. Through
the said communication though a reference is made to
indicate that the proposal to appoint Dr. A.N. Jha as the
VicePrincipal is not acceptable, it is only a passing
reference made therein while the University for the other
reasons had informed the Chairman, Governing Body of
the College that a Committee has been constituted to look
into the affairs of the College. If at all anybody is to be
aggrieved by the said communication, it is the Governing
Body itself which is also an appellant herein which should
have been aggrieved. Instead, a common contention is
being urged by the appellants who have conflicting
interest and the common contention to that effect is not
acceptable.
10. In that background, when an earlier decision had
been taken by the Selection Committee to appoint the
respondent Dr. A.N. Jha as the VicePrincipal and a letter
had been addressed to the University on 28.12.2015, the
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action of the University in rejecting such requests through
its communication dated 13.01.2016 was the issue which
was required to be examined by the High Court. To that
effect, both the learned Single Judge as also the Division
Bench referred to the procedure required for appointment
of the VicePrincipal. In that regard, it is seen that Clause
4(4) of Ordinance XVIII would indicate that the prior
approval from the University is required to be taken.
However, the tabular form extracted and taken note by the
Division Bench in para 6 of the order would indicate that
on most of the occasions the approval has been granted
post facto . It is in that light, it has been rightly held by
the High Court that the rejection in the present case on
the ground that there was no prior approval would not be
justified when the fact remains that the Governing Body
had considered the respondent to be suitable and the
respondent was not in any other manner ineligible. It is
no doubt true that when a procedure is contemplated the
same is required to be followed. However, in the present
fact the very manner in which the appellants have
proceeded to deny the benefit to the respondent would
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indicate that the action is not bonafide when the
respondent No.1 is not otherwise ineligible. As such in
that circumstance when the factual matrix herein
indicates that at the first instance the Governing Body had
resolved to appoint the respondent as the VicePrincipal
and had sent the communication for approval as far back
as on 29.12.2015 the subsequent developments should
not take away the right that has accrued to the
respondent.
11. Further, the subsequent resolution of the
expanded Governing Body of the College dated 29.02.2016
referred to by the senior advocate for the appellant would
indicate that the entire concern appears as an attempt to
stone wall the respondent Dr. A.N. Jha from acting as the
Principal and in furtherance of such intention the entire
action has been initiated so as to deny him even the
benefit of being the VicePrincipal to which he is entitled,
inasmuch as the appellants apprehend that the
respondent would otherwise become entitle to act as the
Principal in terms of the provision contained in Clause 7(3)
of Ordinance XVIII. The need for the VicePrincipal to act
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as the Principal would arise only if the appellants herein
do not take appropriate steps to appoint a Principal and if
the post of Principal remains vacant. If the appellants
have not taken steps to appoint a regular Principal in
accordance with the procedure, they are to blame
themselves and cannot victimize the respondent and
prevent him from functioning as a VicePrincipal, the post
to which he is entitled to by putting forth the issue of prior
approval as a ruse to decline approval. In fact, the High
Court has appropriately articulated this aspect of the
matter to arrive at its conclusion.
12. The very nature of the contentions put forth by the
learned senior advocate for the appellants with emphasis
on the aspect of acting Principal of the College and to
allege that if the respondent is appointed as the Vice
Principal he would hinder the process of appointment of
the regular Principal would amount to putting the ‘cart
before the horse’. As already taken note the grievance
raised by the respondent No.1 herein at this point is with
regard to the appointment of VicePrincipal of the College
to which a right has accrued in favour of the respondent
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No.1 in view of the decision taken by the Governing Body
of the College which was already sent for approval to the
University. The correctness or otherwise of the same
being examined, the High Court has rightly held that the
rejection of approval is not justified. If that be the
position, the respondent would be entitled to be appointed
as the VicePrincipal.
13. Insofar as the post of Principal, it is for the
appellants to take a decision in that regard and appoint a
regular Principal. If such duty that is cast on the
appellant is not done and, in that circumstance, if the post
of Principal continues to remain vacant, it is only in such
event Clause 7(3) of Ordinance XVIII would come into play.
In such circumstance merely on the apprehension that if
the respondent becomes the acting Principal by virtue of
being the VicePrincipal, he would not allow the
appointment of the regular Principal is a contention which
is liable to be rejected. Therefore, in that circumstance if
all these aspects are kept in view the conclusion reached
by the High Court is justified and the same does not call
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for interference.
14. At this stage it is appropriate to keep in perspective
our interim order dated 08.01.2020 when these appeals
were heard and reserved for judgment. By considering the
interest of Institution it was observed that Dr. Prakash Vir
Khatri will continue as the acting Principal and the first
Respondent Dr. A.N. Jha will continue as the acting Vice
Principal. In view of our conclusion as above, the
respondent No.1 is entitled to function as the regular Vice
Principal for which the appellants shall take necessary
action. By the very order dated 08.01.2020 we had also
indicated that the appellants will initiate the process of
appointment of the regular Principal. We had further
expressed that it is desirable the appointment be made in
two months. Though on being appointed as Vice
Principal, the post of Principal being vacant, the
respondent No.1 Dr. A.N. Jha would have the benefit
available under Regulation 7(3) noticed supra, we see no
reason to curtail the period given for appointment of
regular Principal and allow such benefit to respondent
No.1 at this stage itself as the interest of the Institution
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remains the primary concern. It is however made clear
that if no steps are taken by the appellants to appoint the
regular Principal, in such event, on expiry of the time
indicated the right would accrue to the first respondent to
act as regular VicePrincipal in terms of the impugned
order and other rights which he may be entitled in terms
of the Regulations.
15. The appeals stand dismissed accordingly. There
shall be no order as to costs. All pending applications
shall stand disposed of.
……………………….J.
(R. BANUMATHI)
……………………….J.
(A.S. BOPANNA)
New Delhi,
January 23, 2020
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