Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1913 OF 2022
(Arising out of SLP (C) NO. 26763 OF 2015)
DINESH CHANDRA SHUKLA …APPELLANT(S)
VERSUS
STATE OF U.P. & ORS. …RESPONDENT(S)
J U D G M E N T
V. RAMASUBRAMANIAN, J.
1. Aggrieved by the dismissal of his writ petition seeking to quash
an order of the Chancellor of the Mahatma Gandhi Kashi Vidyapeeth
University (hereinafter referred to as ‘the University’), rejecting his
request to be appointed as Lecturer (Karm Kand), the appellant is
before this Court.
2. We have heard the learned counsel for the appellant, the learned
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2022.03.24
16:37:57 IST
Reason:
counsel appearing for the Chancellor of the University, the learned
1
counsel for University itself and the learned standing counsel for the
State.
3. The brief facts necessary for the disposal of the above appeal are
as follows:
(i) Vide order dated 22.10.1996, the State of U.P sanctioned
one post of Lecturer in ‘Karm Kand’ in the Department of
th
Sanskrit in the University, which is arrayed as the 5
respondent herein. The Chancellor of the University, the
Executive Council and the Vice Chancellor of the University
are arrayed separately as respondents 2 to 4 herein for
reasons not difficult to fathom.
(ii) It appears that one Shri Jai Prakash Pandey was initially
appointed to the said post and his services were also
regularised. But the regularisation of his services was set
aside by the High Court by an order dated 19.08.2006 in
Writ Petition No.35149 of 1999.
(iii) Thereafter, the appellant herein was engaged by the
University as a Guest Lecturer to teach ‘Karm Kand’ to the
students in the Department of Sanskrit. The remuneration
2
payable to him was fixed at Rs.250/ per lecture subject to
a maximum of Rs.5,000/ per month.
(iv) A proposal to fill up the post on regular basis was
submitted by the Head of the Department of Sanskrit on
16.10.2006. It was approved by the ViceChancellor on
18.10.2006. Pursuant thereto, the University issued an
advertisement bearing Advertisement No.2 of 2006, inviting
applications for appointment to one post of Lecturer in
‘Karm Kand’. The advertisement also contained invitation
for applications for various other posts in various
departments. We are not concerned in this case with the
posts in other departments for which applications were
invited in the same advertisement. Suffice it to say that
applications were invited for appointment to 8 posts of
lecturers in various subjects, one of which was for
appointment to the post of Lecturer in ‘Karm Kand’.
(v) Unfortunately, a controversy erupted, when the then
Chancellor of the University issued an oral order restraining
the ViceChancellor from convening the meetings of
3
Selection Committees pursuant to the aforesaid
advertisement, on the ground that the ViceChancellor was
due to retire on 31.12.2007. But the High Court, by an
order dated 04.10.2007 passed in a writ petition, made it
clear that statutory functions performed by the Vice
Chancellor cannot be put on hold by oral orders of the
Chancellor. Thereafter, a written order was issued by the
Chancellor on 14.12.2007. However, the said order was
challenged in another writ petition and the same was stayed
by the Allahabad High Court, paving the way for the
Selection Committees to proceed further pursuant to the
Advertisement No.2 of 2006.
(vi ) As a consequence, the Selection Committees in respect of
various posts held meetings and made recommendations.
Some of these recommendations were accepted by the
Executive Council by its Resolution dated 24.12.2007.
(vii) Since the ViceChancellor retired in the meantime before
the recommendations were implemented, a batch of writ
petitions came to be filed. A spate of interim orders came to
4
be passed pursuant to which the Executive Council decided
to refer the recommendations of the Selection Committees
to the Chancellor under the proviso to Section 31(8)(a) of
the U.P. State Universities Act, 1973.
In the case of the appellant, the Selection Committee had
(viii)
recommended his candidature for appointment to the post
of Lecturer in ‘Karm Kand’. But the Executive Council
disagreed with the Selection Committee on the ground that
the ViceChancellor failed to request the Chancellor to
nominate subject experts in the Selection Committee. It is
relevant to note here that the Selection Committee
shortlisted only two persons, one of whom was the
appellant and other Dr. Jai Prakash Pandey. The said Dr.
Jai Prakash Pandey had secured only 49.2% marks as
against the minimum prescription. Therefore, he was not
issued with any interview call letter.
(ix) Agreeing with the decision of the Executive Council, the
Chancellor passed an order dated 23/28.12.2010 annulling
5
the recommendation made by the Selection Committee for
the appointment of the appellant.
(x) The appellant challenged the said order of the Chancellor by
way of a writ petition in Writ Petition No.6389 of 2011. By
an Order dated 02.12.2011, the said writ petition was
allowed and the matter remanded back to the Chancellor.
The reason why the matter was remanded back to the
Chancellor was that admittedly there was no University in
the country awarding a post graduate degree in ‘Karm Kand’
and that, therefore, there were actually no experts in the
subject of ‘Karm Kand’, as sought to be projected by the
Chancellor. Since the question whether subject experts
were at all available in the field of ‘Karm Kand’ went to the
root of the matter, the High Court thought fit to remand the
matter back to the Chancellor.
Pursuant to the aforesaid direction, the Chancellor
(xi)
considered the matter and passed a fresh order dated
24.08.2012, rejecting the recommendation of the Selection
Committee. This order was challenged by the appellant by
6
way of a fresh writ petition in Writ Petition No.63137 of
2012. By the Order dated 14.05.2015 impugned in this
appeal, the Division Bench of the Allahabad High Court
dismissed the writ petition of the appellant on the ground
that after the order of remand, the Chancellor had
consulted a few experts and found that the subject of ‘Karm
Kand’ is altogether different from the subject Sanskrit and
that therefore, with the qualifications that the appellant
possessed, he could not have been selected for
appointment. It is against this order of the High Court that
the appellant is before us.
4. Before we proceed to consider the core issue arising for
consideration, we are obliged to take note of the fact that admittedly
the appellant was engaged as a Guest Lecturer on remuneration of
Rs.250/ per lecture subject to a maximum of Rs.5000/ per month
from the year 2006. Ever since then the appellant has been teaching
students undergoing a one year diploma course in ‘Karm Kand’ for the
past nearly 16 years.
7
5. The next thing we have to take note of before we take up for
consideration the issue arising in the above appeal, is that the
appellant, and perhaps the entire selection process undertaken in
2006 by the University, became victims of the crossfire between the
Chancellor and the ViceChancellor. Admittedly, the post was
originally filled up by a person who was actually the purohit to the
then Governor of State of Uttar Pradesh. But his appointment was set
aside by Allahabad High Court by an order dated 19.08.2006. It is
only thereafter that Advertisement No.2 of 2006 came to be issued,
inviting applications for appointment to the post.
6. But it is of interest to note that the advertisement did not specify
particularly that a candidate applying for the post of Lecturer in ‘Karm
Kand’ should hold a Master’s Degree in ‘Karm Kand’. In fact the order
of the Chancellor dated 24.08.2012 which became the subject matter
of the writ petition, specifically concedes as follows: “there is no
mention of the subject Karm Kand in the Statutes of the Mahatma
Gandhi Kashi Vidyapeeth nor any Ordinance under Section 51/52 nor
any Regulations under Section 53 of the U.P. State Universities Act,
1973. The order of the Chancellor only relied upon Statute 11.01(1) of
8
the University First Statutes, 1977, which stipulated that the minimum
qualifications required for appointment to the post of Lecturer in the
University or a Master’s Degree or equivalent degree in relevant subject
with at least 55% marks and consistently good academic record and
NET or Ph.D. degree”.
7. In his order dated 24.08.2012, the Chancellor held that the
appellant did not hold a Master’s degree in ‘Karm Kand’. But before he
came to such a conclusion, the Chancellor as well as the High Court
ought to have verified (i) whether the Statutes prescribed any specific
qualifications necessary for appointment to the post of Lecturer in
‘Karm Kand’; and if not, what should be considered as “ relevant
(ii)
subject and by whom”.
8. It must be pointed out at this stage that in the first instance, the
Executive Council took a stand that the selection of the appellant was
vitiated primarily on account of noninclusion of subject experts in the
field of ‘Karm Kand’. The appellant was not held by the Executive
Council to be a person not possessing the prescribed qualifications for
appointment. This is why the order of remand passed by the High
Court on 02.12.2011 specifically directed the Chancellor to consider
9
whether or not there were subject experts in ‘Karm Kand’ to be
included in the Selection Committee. Instead of confining himself to
the said question, the Chancellor seems to have taken the opinion of
one Professor Gaya Ram Pandey, Head of the Department of Sanskrit
to come to the conclusion that ‘Karm Kand’ and Sanskrit are two
separate subjects and that while ‘Karm Kand’ is a practical subject,
Sanskrit is not. The said Professor Gaya Ram Pandey also seems to
have provided information to the effect (i) that a few universities such
as Banaras Hindu University, Sampurnanand Sanskrit University,
Lucknow University, and Lal Bahadur Shashtri Rashtriya Sanskrit
Vidyapeeth have included ‘Karm Kand’ as a subject in their courses;
and (ii) that, however, according to the information from the Registrar
of Lal Bahadur Shashtri Rashtriya Sanskrit Vidyapeeth, there is no
post of Lecturer in ‘Karm Kand’. In his order dated 24.08.2012 the
Chancellor also recorded that certain universities teach the subject of
Karm Kand/Paurohitya and provide degrees like Acharya (M.A) and
Vidyavaridhi (Ph.D.).
9. Obviously the consultations made by the Chancellor with certain
persons and the information gathered by him before passing the order
10
impugned before the High Court, were beyond the scope of order of
remand passed by the High Court. The information collected by the
Chancellor not only enlarged his original objections to the selection of
the appellant but was also gathered behind the back of the appellant.
In the course of hearing of the above appeal, we raised a pointed
10.
query to Shri Sandeep D. Das, learned counsel appearing for the
University as to whether the Statutes of University prescribed any
specific qualifications for appointment to the post of Lecturer in ‘Karm
Kand’ or at least whether Advertisement No.2 of 2006 indicated the
qualifications. He had no alternative but to concede that the statutes
do not contain any prescription regarding the post of Lecturer in
‘Karm Kand’. He also conceded that the advertisement did not indicate
any specific qualification except that the aspirant should hold a post
graduate degree in the relevant subject.
11. In the absence of any specific prescription, the University ought
to have referred the question of what constitutes relevant subjects,
before the process of selection began. Neither the University nor the
Chancellor took a stand in the first instance that the appellant was
not qualified in the “relevant subject ”. Their initial objection was that
11
the Selection Committee did not include the subject experts
nominated by the Chancellor. After it was pointed out that there were
no subject experts in ‘Karm Kand’, as no University was offering a
specific course in ‘Karm Kand’, the High Court thought fit to remand
the matter back to the Chancellor, to ascertain whether subject
experts were actually available and whether the failure of the Vice
Chancellor to seek nomination of such experts from the Chancellor
vitiated the whole process. Finding that the answer to the said
question was too difficult to be provided, the Chancellor went on a
detour to find out what are the differences between the subject of
Sanskrit and the subject of ‘Karm Kand’. This was clearly erroneous
and the High Court unfortunately omitted to notice this mistake.
12. Admittedly, the appellant has been teaching ‘Karm Kand’ for the
past nearly 16 years in the same University. Though the learned
counsel for the University stated that his continuance was on account
of an interim order of status quo passed by this Court, we notice that
the interim order of status quo was passed only on 14.09.2015.
Unless the appellant was continuing as on that date, the order of
status quo would have meant nothing for him.
12
13. The parameters to be applied to a case where an incumbent to a
post does not fulfil the qualifications prescribed for a post, are
different from the parameters to be applied to a case where no specific
qualifications are prescribed for a particular post. The question as to
what constitutes “relevant subject” should have been left to the
experts, before the advertisement was issued, especially when the
statutes did not prescribe any specific qualifications. This did not
happen in this case. In fact the question whether subject experts were
available at all in ‘Karm Kand’, itself became a matter of controversy.
The entire controversy appears to have arisen as a result of the tug of
war in the year 2006 between the then Chancellor and the then Vice
Chancellor, making the appellant a victim in the line of fire.
Unfortunately, the High Court omitted to take note of all this.
14. The expression “ equivalent qualifications ” has a different
connotation than the expression “ relevant subject ”. In Punjab
1
vs. , this Court was
University Narinder Kumar and Others
concerned with the interpretation of the expression “ relevant subject ”.
But in that case the advertisement itself prescribed “ the essential
1 (1999) 9 SCC 8
13
qualifications ” under one head and “ desirable specialisation ” under
another head. Therefore, this Court found that though the words
“ relevant subject ” did not throw any light on the question as to what
are the relevant subjects for the post of a Lecturer in any specified
subject, the column dealing with “ desirable qualifications ” threw light
upon what was relevant. Therefore, cases in which a clue is available
in the advertisement itself may stand on a different footing than cases
where there is no such clue.
15. In vs.
Ganapath Singh Gangaram Singh Rajput Gulbarga
2
University , this Court was concerned with a case where applications
were invited for appointment to the post of Lecturer in MCA, from
candidates holding a post graduate degree in the “ relevant subject ”.
As a matter of fact, this Court found that candidates with Masters’
degree in Computer Applications were available, but a candidate with
Masters’ degree in Mathematics was selected. This Court found fault
with the decision of the Board of Appointment in selecting the
candidate with a Master’s degree in Mathematics with a flawed
reasoning that Mathematics is one of the subjects taught in MCA.
2 (2014) 3 SCC 767
14
16. In the case on hand no candidate was available with a post
graduate degree in ‘Karm Kand’ and the Selection Committee which
comprised of a representative of the Department of Sanskrit found the
appellant to possess a Master’s degree in the relevant subject. The
appointment itself was to the post in the Department of Sanskrit.
17. In fact, during the pendency of the writ petition before the High
Court, the Academic Council of the University held a meeting on
22.08.2013. Agenda No.10 for the said meeting related to the
qualifications for appointment to the post of Lecturer in ‘Karm Kand’.
The recommendation made by the Head of the Department of Sanskrit
was accepted by the Academic Council. Agenda Item No.10 of the said
meeting of the Academic Council reads as follows:
“Agenda No.10: Recommendations of Department of
Sanskrit. Prof Uma Rani Tripathi Head of the
Department, Department of Sanskrit gave the
information related to the recommendation of the
Department of Sanskrit by apprising that the Academic
Qualification of the Karm Kand and for the post of
Professor of Sanskrit be kept one and the same as well
as the Specialized experience of karm kand be
stipulated as compulsory which was passed
unanimously”
15
18. If only the High Court had looked into the minutes of the
meetings of the Academic Council it could have easily appreciated that
the appellant was entitled to succeed.
19. Under Section 25(1)(c) of the U.P. University Act, the Academic
Council is empowered to advise the Executive Council with regard to
the qualifications required to be possessed by persons imparting
instructions on particular subjects. Therefore, the minutes of the
meetings of the Academic Council dated 22.08.2013 has clinched the
issue in favour of the appellant. Hence it is time for the University to
put an end to this ‘ Yuddh Kand’ and allow the appellant to move from
‘ Karm Kand’ to ‘ Karm Phal Kand’.
20. Therefore, the appeal is allowed, the impugned order of the High
Court is set aside and the writ petition filed by the appellant before the
High Court is allowed, as prayed for. In view of the fact that the
(i)
appellant has been teaching the very same subject for the past nearly
16 years; and that the original Selection Committee which found
(ii)
him eligible for appointment, comprised of Professors from the
Department of Sanskrit of which the diploma course in ‘Karm Kand’
16
th
was a part, a direction is issued to the 5 respondentUniversity to
regularise the services of the appellant. There shall be no order as to
costs.
…………………………….J.
(Hemant Gupta)
…………………………….J.
(V. Ramasubramanian)
New Delhi
March 24, 2022.
17