Full Judgment Text
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PETITIONER:
THE COMMITTEE OF MANAGEMENT, VASANTA COLLEGE FOR WOMEN
Vs.
RESPONDENT:
TRIBHUWAN NATH TRIPATHI & ORS.
DATE OF JUDGMENT: 21/11/1996
BENCH:
N.P. SINGH, SUHAS C. SEN
ACT:
HEADNOTE:
JUDGMENT:
THE 21ST DAY OF NOVEMBER, 1996
Present :
Hon‘ble Mr. Justice N.P.Singh
Hon‘ble Mr. Justice Suhas C.Sen
A.K.Chitale, Sr. Adv., Niraj Sharma, Adv. with him for
the appellant
S.K. Gupta, and Anil Kumar Jha, Advs. for the
Respondents
J U D G M E N T
The following Judgment of the Court was delivered:
SEN, J.
Leave granted.
Vasanta College for Women, Rajghat Fort, Varanasi, is
an educational institution run by and under the control of
Krishnamurthi Foundation India. The post of Lecturer in
English fell vacant in the College. An advertisement was
issued by the College on 12.8.1989 in a number of newspapers
inviting applications for the post. The eligibility
requirement for the post according to the advertisement,
was:
(a) A good academic record and at least a high Second
Division in the Master‘s Degree in the relevant
subject from a recognised University.
(b) A Doctorate or M.Phil. Degree or an equivalent
published work showing an ability to carry out
independent research work. DESIRABLE: A good
working knowledge of Hindi and English.
Tribhuwan Nath Tripathi was one of the candidates for the
post. Tripathi had a Master‘s Degree in English, but did not
have any Doctorate or M.Phil Degree. Tripathi had a claim
that the had registered himself for Ph.D. in March, 19986 on
the research topic "Non-Romanticism in Modern British
Poetry". He had several publications and books to his credit
which were as under:-
Publications:
(i) Research Papers
(a) "Romanticisim and Neo-
Romanticism".
(Accepted for publication)
(b) "Surrealism and the English
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Neo-Romantics"
(Accepted for publication)
(c) "Treatment of Love in the
Poetry of David Gascoyne"
(Sent for publication)
(d) "Nature in the Hands of Dylan
Thoman"
(Under publication)
(ii) Books
Learning English
PartIV (1987)
PartIII (1988)
PartIV (1988)
PartV (1988)
(Bharati Pustak Mandir, Calcutta)
A Selection Committee was constituted to interview the
candidates. The Selection Committee comprised of two
external expert members and two representatives of Banaras
Hindu University - One was an expert in the subject for
which interview was conducted and the other expert was
nominee of the University, who may or may not be an expert
in the subject. But, when the interview by the Selection
Committee was held on 8.11.1989, the two representatives of
BHU failed to turn up. The other two members of the
Selection Committee, however, proceeded with the interview
and selected Tripathi for the post of Lecturer in English.
After the Selection Committee had selected Tripathi for the
post of Lecturer in English, the Manager of the College
wrote a letter dated 10.11.1989 to the Deputy Registrar of
the BHU, asking him to seek the approval of the Vice-
Chanceller to ad hoc appintment of Tripathi as Lecturer in
English with effect from the date he took over charge.
Officer on Special Duty (Acad. & Exams.) of the BHU wrote a
letter dated 23rd December, 1989 seeking clarification as to
why the appointment letter issued to Tripathi mentioned that
he had been offered ad hoc appointment as Lecturer only and
further continuation had been made conditional. It was
pointed out that the Selection Committee had recommended
Tripathi for appointment as a Lecturer. The Selection
Committee had also mentioned that Tripathi‘s research work
and publications were assessed equivalent to Ph.D. On
January 8, 1990, the Manager of the College replied to the
letter dated 23rd December, 1989:-
"You will recall that the Managing
Committee of our College had
requested the Banaras Hindu
University to permit them to invite
one expert from outside for
selection of Lecturers. This was
approved by the Executive Council
of the BHU and made applicable to
all the affiliated colleges.
Accordingly we have been inviting
external experts out of the panel
of names supplied to us by the BHU
for this purpose. Our Managing
Committee has resolved as a policy
matter that permanent appointments
should be made only when both
experts are present in the
selection. Temporary or ad hoc
appointments can be made even when
one of the experts is absent. In
this case we had invited two
external experts for the Selection
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Committee but both were unable to
turn up on account of certain
disturbances in the city in spite
of having conveyed their
acceptance. Therefore, the
selection was held only with the
University nominee and one subject
expert in the committee. The
candidate selected did not have a
Ph.D. and had stated in the
interview that he has started
writing his thesis and will be
completing his Ph.D. shortly. In
view of the above facts, we have
decided to offer Shri T.N. Tripathi
an ad hoc appointment and this has
also been approved by the
University."
It may be mentioned that Tripathi had been offered an
ad hoc appointment by the Manager by letter dated 18.11.89
which was accepted by Tripathi by a letter dated 27.11.89 in
which he pointed out that the was not a candidate for ad hoc
appointment and there must have been some mistake which
should be clarified. It was stated by Tripathi that he was
the only candidate with published work in English Grammar
and had appeared before the Selection Committee. He was an
aspirant for the permanent post. He requested the college to
allow him to wait for the result of the interview for the
permanent post.
On 29.11.89 the Manager of the College informed
Tripathi in writing that the post against which he had been
appointed was a permanent post, but temporary appointment
was offered as he had not completed his M.Phil/Ph.D. Degree.
He further wrote:-
"You had mentioned in the interview
that you are writing your Ph.D.
thesis and will be submitting it
shortly. You will be considered for
a permanent appointment after
successful completion of your
Ph.D."
Tripathi was asked to join duty latest by December 15,
1990 failing which it would be presumed that he was not
interested in accepting the offer. On the December, 1989,
the Deputy Registrar of BHU informed the Manager of the
College that ad hoc appointment of Tripathi had been
sanctioned. On 12th December, 1989, Tripathi joined as
Lecturer in English on ad hoc basis. On 23rd December, 1989,
O.P. Tandon, an Officer special Duty at BHU pointed out to
the Manager of the College that Tripathi had been
recommended by the Selection Committee for appointment as
Lecturer in English. The appointment letter issued to
Tripathi mentioned that the had been offered ad hoc
appointment as Lecturer until 30th April, 1990 and further
continuation had been made conditional. The proceedings of
the Selection Committee also mentioned that "his research
work and publications are assessed equivalent to Ph.D." In
view of that what had been stated above, it was not clear
why Tripathi was not appointed on probation and instead
given ad hoc appointment. On 4th January, 1990, management
of the college passed a resolution for permanent appointment
of Anita Singh and for ad hoc appointment of respondent
although only one expert was present at the meeting. On 8th
January, 1990, it was pointed out on behalf of the college
in reply to the University‘s letter dated 23rd December,
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1989 that due to the absence of one expert, permanent
appointment could not be given to Tripathi. On 27th March,
1990, Tripathi sought permanent appointment and explained
that delay in getting the Ph.D. thesis paper.
On 1st may, 1990, the period of ad hoc appointment of
Tripathi was extended upto 31st October, 1990 or permanent
appointment whichever was earlier. On 20th April, 1990, the
University had issued a certificate that pre-submission
seminar of Tripathi‘s Ph.D. thesis had been held. A copy of
the certificate had been forwarded to the management. On
16th July, 1990, Tripathi filed a writ petition in the
Allahabad High Court seeking a writ of Mandamus for
permanent appointment and also an order against termination
of his service. On behalf of the appellant-College, an
advertisement was given in Employment News dated 25-31,
August, 1990 inviting applications for permanent Lecturers
in English, Geography and History. The required
qualification was, at least a high second class
M.Phil./Ph.D. or equivalent published work indicating the
candidate‘s capacity in independent research work. It was
stated in the advertisement that if no suitable candidate
with M.Phil./Ph.D. was available, a candidate with good
academic record with at least two years‘ research/practical
experience may be appointed on the condition that he/she
will have to complete the Ph.D. within eight years of
appointment.
On 5th October, 1990, Tripathi informed the management
of the College that he had completed the research work and
his thesis had been submitted on 4th October, 1990 and a
certificate of University was enclosed, Thereupon, the
management of the College sent him an interview call letter,
But, Tripathi did apply for the post pursuant to the
advertisement nor did he turn up for the interview. But, he
filed a second writ petition No. 32900/90 challenging the
advertisement dated 31st August, 1990. This was followed by
a letter to the management not hold any selection in view of
the pendency of the writ petition. No interim order was
passed by the Court. On 29th December, 1990, Madhu Kapoor
was appointed Lecturer in English as a probationer. On 2nd
January, 1992, her appointment was confirmed. On the
October, 1993, Madhu Kapoor gave a three months notice of
resignation. On 9th October, 1993, management directed that
Madhu Kapoor gave a three months notice of resignation. On
9th October, 1993, management directed that Madhu Kapoor be
relieved with effect from the January, 1994 and fresh
advertisement was issued in Employment News dated 6-12
November, 1993 inviting applications to the post of lecturer
in English. On 11th January, 1994, the High Court on the
application of Tripathi passed an interim order that any
selection or appointment shall be subject to the writ
petitions filed by Tripathi. Tripathi claimed that in
january, 1991, he had obtained a Ph.D. degree from BHU. The
title of his thesis was "Neo-Romanticism in Modern British
Poetry".
When the writ petition filed by him was taken up for
hearing, the High Court held that there was no reason why
Tripathi should not have been appointed to the post of
Lecturer in English and the management was directed to
appoint Tripathi. The Court also directed that Tripathi‘s
appointment pursuant to the advertisement dated 12th August,
1989 "shall be deemed to have been made on permanent basis
and shall entail the consequences in accordance with law".
The Committee of Management of the College has come up
in appeal and has contended that when appointment of Madhu
Kapoor was made, Tripathi had not challenged the
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appointment. Madhu Kapoor functioned as Lecturer for more
than three years and there is no reason why Tripathi should
be reinstated. The writ-petitioner would not have had any if
Madhu Kapoor continued to work as a Lecturer in the College.
The basic point is that Tripathi did not have the
requisite qualifications for appointment as Lecturer. He did
not have a Ph.D. Degree when he appeared for interview. That
is why an ad hoc appointment was given to him. This was done
on the basis of representation made by Tripathi before the
Selection Committee that he would get his Ph.D. Degree
shortly. But he failed to get the same even within the
extended time of appointment and, therefore, the management
had no alternative but to issue fresh advertisement for the
post of Lecturer. The ad hoc appointment was extended once
and had not been extended thereafter. A fresh appointment
was made. Madhu Kapoor functioned as Lecturer in English
till she voluntarily resigned after three years.
The contention of Tripathi is that the writ petition
was filed long before Madhu Kapoor was appointed. His case
is that the Selection Committees had recommended him for
appointment on permanent basis. The Committee had taken into
consideration the fact that he did not have a Ph.D. degree,
but considered his published work as equivalent to Ph.D. It
was for the Selection Committee to assess the merit of the
candidate. It was not the case of the management that the
Selection Committee had erred in it assessment. The case of
the management was that the two nominees of BHU, one whom
was for the management to arrange a proper meeting of the
Selection Committee. The management did not call for another
meeting of the Selection Committee but implemented its
decision in its own way. The selection Committee recommended
Tripathi to be appointed on permanent basis. The management
appointed Tripathi on ad hoc basis on the plea that the two
experts from BHU had failed to attend the meeting. If the
meeting was not held properly, then the college authorities
should not have acted on the basis of the recommendation of
the Selection Committee at all. In fact, no attempt was made
by the College authorities to convene another meeting of the
Committee to assess the merit of the candidates. In other
words, the management accepted the decision of the Selection
Committee and Tripathi was allowed to function as Lecturer
in English on ad hoc basis from 12th December, 1989 to 31st
October, 1990. Tripathi had duly completed his Ph.D. thesis.
There was some delay in obtaining the degree because of
fracture suffered by his supervisor, but ultimately, he
obtained his Ph.D. Degree. His prayer is to regularise his
appointment.
At the point of time when Madhu Kapoor was appointed as
Lecturer in English, Tripathi‘s ad hoc appointment stood
terminated. Tripathi‘s had accepted the ad hoc appointment
after making some protests but actually worked on ad hoc
basis and even got an extension of the appointment on ad hoc
basis. It was clearly explained to Tripathi at the time of
his appointment that if he obtained his ph.D. within a short
time, his appointment will be made permanent. It has been
stated on behalf of the appellant that the appointment was
given on the basis of an assurance given by Tripathi to the
Selection Committee. Unfortunately, Tripathi could not get
his Ph.D. Degree within a reasonable time after his
appointment. The management of the College, thereafter,
decided not to grant any further extension to the ad hoc
appointment of Tripathi and proceeded to advertise the post
once again and appointed Madhu Kapoor as Lecturer. It is
true that Tripathi had writ petitions challenging
advertisement and termination of his service. Tripathi could
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not get any interim orders as a result of which Madhu
Kapoor‘s appointment was made unconditionally on permanent
basis.
What happened thereafter was a fortuitous event. Madhu
Kapoor after only three years‘ service resigned. The post
was readvertised. During the three years‘ tenure of Madhu
Kapoor, the respondent did not question the validity of
Madhu Kapoor‘s appointment at all nor did he stake any claim
to the post occupied by her. The resignation of Madhu Kapoor
could not give rise to any right to the respondent. It is
true that in the meantime, he had obtained Ph.D. It is also
true that the conditions of recruitment had been relaxed to
enable an otherwise qualified person to obtain a Ph.D.
Degree within a period of eight years from the date of
appointment. But the case of the respondent has to be seen
on the basis of the rules on force at the time of his
appointment.
The respondent‘s contention that he had published works
equivalent to Ph.D. at the time of appointment cannot be
accepted. He stated that he had submitted four papers. But
the papers were not published on the date of his
appointment. He had not given any particulars about the
journals or persons to whom he had submitted his papers for
publication. The only concrete thing he stated was that he
had written four books on English Grammar for school
children. But these were elementary works which could not be
treated as equivalent to Ph.D. in English.
The respondent that the Selection Committee was
satisfied as to the quality and standard of the work done by
him. The College management has pointed out that the experts
from BHU failed to attend the Selection Committee meeting.
The other expert who was in the Committee was the Supervisor
of the respondent himself. In any event, the appellant-
College being the appointing authority was entitled to
appoint the respondent on ad hoc basis giving a chance to
him to obtain his Ph.D. Degree within a reasonable time.
We are of the view that the contention of the
appellant-College must be upheld. Although, there was
considerable laxity on the part of the College authorities
in the way they have handled the case, we are of the view
that without strong grounds being made out, it would not be
right to unseat the person who has now been appointed as
Lecturer in English pursuant to the second advertisement.
The writ-petitioner was not qualified to be appointed as
Lecture when he mad his application pursuant to the
advertisement dated 12th August, 1989. Even then he was
appointed on ad hoc basis and was given a chance to acquire
the requisite qualification within a brief period. His ad
hoc appointment was extended once and thereafter it was not
extended. The petitioner did not have any subsisting right
for continuation of service at that point of time. His
position has not improved by the acquisition of the Ph.D.
Degree in January, 1991 after he ceased to be a lecturer
even on an ad hoc basis. He could have applied in response
to the advertisements that were issued subsequently. He
chose not to do so. We do not find any merit in the writ
petition. There is no reason to treat him as Lecturer even
after the period of ad hoc appointment was over and madhu
Kapoor functioned as lecturer in English for a period of
more than three years.
In that view of the matter, this appeal is allowed. The
order of the High Court dated 23.12.1994 is set aside. There
will be no order as to costs.
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