Full Judgment Text
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CASE NO.:
Appeal (civil) 6048 of 2000
Appeal (civil) 6047 of 2000
PETITIONER:
S.K. KUSHWAHA &KURUKSHETRA UNIVERSITY & ANR.
Vs.
RESPONDENT:
D.K. JOSHI AND ORS.
DATE OF JUDGMENT: 18/03/2002
BENCH:
S.N. Phukan & P. Venkatarama Reddi
JUDGMENT:
P.Venkatarama Reddi, J.
The appellant in C.A.No. 6048/2000 who was working as a lecturer
in Art and Crafts in the University College of Education, Kurukshetra, for
considerable time applied for the post of Principal pursuant to the
advertisement No. 10 of 1995 issued by Kurukshetra University. It appears
that this advertisement is the fourth in the series since 1990. No candidate
was selected on the earlier occasions. The appellant and the 1st respondent in
the said appeal who was lecturer in English in the same College, were called
for the interview. The Establishment Committee which interviewed
candidates, recommended the appointment of the appellant. The
recommendation was accepted by the Executive Council on 10.1.1997 and
the appellant was appointed as Principal in January 1997. About one year
later, the 1st respondent in CA No. 6048 of 2000 filed C.W.P. No. 351/98
questioning the selection and appointment of the appellant on the ground of
not having the requisite qualification for the post of Principal and sought for
direction not to confirm him in that post. This was preceded by a
representation filed a few days earlier by the 1st respondent to the University.
The said Writ Petition was disposed of by Punjab & Haryana High Court on
12.1.1998 directing the representation of the 1st respondent to be considered
by passing a speaking order before confirming the appellant. By a
communication dated 03.09.1998 addressed to the 1st respondent herein, the
University communicated the factum of rejection of the represention and the
grounds of rejection. The last para of the letter dated 03.09.1998 reads as
follows:
"Dr. Kushwaha was M.A. in first Division. No doubt he
did not possess the qualification of M.Ed. but in view of
the resolution of the Executive Council this qualification
was relaxable and accordingly he was considered and
selected by the Establishment Committee by relaxing the
qualification of M.Ed. Therefore, the plea of Dr. Joshi
that he did not possess the qualification laid down in the
advertisement is wrong as his case was covered under
relaxation clause as passed by the Executive Council in
its meeting held on 22.9.1993. Therefore, the
representation of Dr. Joshi has no merits and be
rejected."
Thereafter another Writ Petition-CWP No. 1082 of 1999 was filed by the
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first respondent praying for an order quashing the decision of the Executive
Council dated 22.9.1993 by which relaxation of qualification of M.Ed./B.Ed.
was granted to the appellant and for quashing the communication dated
3.9.1998 by which his representation was rejected. A further direction was
sought for to re-advertise the post of principal by quashing the appointment
of the appellant. The judgment rendered in this CWP has given rise to these
appeals filed by the appointee - Dr. Kushwaha and the University.
The High Court held that the appellant herein did not possess the
essential qualification of M.Ed or B.Ed in terms of the advertisement and it
was not open to the Executive Council to relax that qualification as it had no
such power. Adverting to the resolution of the Executive Council dated
22.9.1993, the High Court commented that the said Resolution had no
relevance to the advertisement issued in the year 1995. The High Court,
therefore, set aside the selection and appointment of the 3rd Respondent as
Principal and directed a fresh advertisement to fill up the post in accordance
with law. The appellant was directed to vacate the post forthwith. However,
he has been continuing in office till date in view of the interim order passed
by this Court and the consequential decision taken by the University.
We have, therefore, to consider the crucial question whether B.Ed or
M.Ed. qualification, as the case may be, is an essential and indispensable
requirement for selection to the post of Principal of University College of
Education.
The qualifications for the posts of Lecturers and Principals in the
recognized Colleges of Education are prescribed by Ordinance XVI. The
following are the qualifications prescribed for the post of Principal :-
Principal :
(a) A Doctor’s Degree.
(b) A consistently good academic record with high
Second Class (55% marks or grade B in even point
scale) M.A. Education with B.Ed (Second Class
with 50% marks in Theory and Practice separately)
or Master’s Degree in any subject with M.Ed (55%
marks in one degree and 50% marks in the other).
(c) Teaching experience of at least 8 years in a
recognized College or University out of which
teaching experience of at least five years should be
in recognized College of Education or the
Department of Education of a University. Persons
with some administrative experience in an
educational Institution will be preferred.
Provided that the teaching experience in the
case of lady Principals of Women Colleges of
Education may be reduced upto five years by the
Vice-Chancellor on the basis of merit taking into
consideration the age, academic record and
experience.
Note :
(i) The condition of Ph.D. Degree shall not apply to
those having 16 years of teaching experience in the
capacity as a regular lecturer in a College.
(ii) The following qualifications are applicable in the
case of University appointed lecturer or a
university approved lecturer of a Recognised
college appointed before 27.1.1976.
(emphasis su
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pplied)
Principal -
(a) A consistently good academic record with High
Second Class (55% marks or grade B in seven
point scale) M.A. Education with B.Ed.
(Second Class with 50% marks in Theory and
Practice separately) or Master’s degree in any
subject with M.Ed. (55% marks in one degree
and 50% marks in the other).
(Relaxable in the case of a University
appointed lecturer or a University approved
lecturer in any capacity, of a recognized
College appointed before 27.1.1976); and
(b) An M.Phil Degree or a recognized degree
beyond the Master’s level or published work
indicating the capacity of a candidate for
independent research work.
(c) Provided that if a candidate possessing the
qualification as at (b) is not available or not
considered suitable, the College on the
recommendation of the Selection Committee
may appoint a person possessing the
qualifications as at (a).
(d) Teaching experience of at least 10 years in a
recognized or affiliated college or University
out of which teaching experience of at least 5
years should be in recognised college of
Education or the Department of Education of a
University. Persons with some administrative
experience in an educational institution will be
preferred.
Provided that the teaching experience in
the case of lady Principals of Women Colleges
of Education may be reduced up to five years
by the Vice-Chancellor on the basis of merit
taking into consideration the age, academic
record and experience."
In the advertisement, it is stated that the qualifications are
mentioned in the application form. A copy of the application form is
not on record. However, an extract of the qualifications for the post
of Principal, University College of Education is found in the paper
book. In that, the word ’and’ occurring at sub-clause (a) of Note II
(extracted above) is found omitted. The same mistake is repeated in
the extract of qualifications given by the High Court. The
qualifications set out in the advertisement coupled with the
application form are supposed to be in conformity with the relevant
rules and ordinances. A copy of the Ordinance No. XVI (corrected
upto 1994) has been filed by the learned counsel for the 1st
respondent-writ petitioner at the time of hearing. We must presume
that the qualifications mentioned in the application form are in
conformity with the Ordinance. Therefore, we proceed on the basis
that at the end of sub-clause (a) following Note II, the expression
’and’ occurs. We have pointed out this glaring omission as the word
’and’ has some bearing on the interpretation sought to be placed by
the learned counsel for the appellant.
It may be seen that two categories of eligible candidates are dealt with
in the Ordinance. The second part prescribes the qualifications for such of
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those lecturers who were either appointed by the University or whose
appointments in a recognized College were approved by the University
before 27.1.1976. The first part applies to the candidates who do not come
within the ambit of second part (i.e. Note II of the Ordinance). We are
concerned here with second part underlined above.
Now, let us see the educational qualifications of the first respondent.
They are: M.A. in 1st Division with the subjects of drawing and painting,
Ph.D (in Fine Arts subject) and 5 year diploma in Commercial Arts.
Admittedly, he does not possess the qualification of M.A. (Education) with
B.Ed or Masters Degree with M.Ed. as required under sub-clause (a). Of
course, he had teaching experience of 26 years as lecturer.
The learned senior counsel for the appellant, Shri G.L. Sanghi, has put
forward, in the first instance, a new contention harping on sub-clause (c)
which, for the sake of ready reference, is repeated hereunder:
"(c)-Provided that if a candidate possessing the
qualification as at (b) is not available or not considered
suitable, the College on the recommendation of the
Selection Committee may appoint a person possessing
the qualifications as at (a)."
According to Shri G.L. Sanghi, sub-clause (c) lays down a rule of preference
and if a candidate with M.Phil or Ph.D is available, it enjoins that such a
candidate should necessarily be appointed. As the appellant possesses
Ph.D. Degree which is a recognized Degree beyond the Masters’ level
within the meaning of sub-clause (b) and he fulfils the teaching experience
criteria, he is eligible for appointment irrespective of the fact that he does
not have one of the qualifications set out in sub-clause (a). The learned
counsel wants to read sub-clauses (a) and (b) as alternative qualifications
and the qualification in (b) prevailing over those in (a). Such argument, in
our view, ignores the conjunctive expression ’and’. There is no compelling
reason to read the word ’and’ as ’or’. In our view, the reasonable and
harmonious way of construing sub-clause (c) is this : in order to get
eligibility for selection to the post of Principal, one of the two academic
qualifications set out in (a) i.e. M.A. (Education) with B.Ed. or Masters
Degree in any subject with M.Ed. is necessary. In addition thereto, the
qualification in (b) should also be fulfilled in the normal course. That is to
say, a candidate in addition to the academic qualification in sub-clause (a)
should have M.Phil Degree or a recognized Degree beyond the Masters’
level or published a research-level work. However, in case such a candidate
having both the qualifications is not available or is otherwise found
unsuitable, the option is left to select a candidate fulfilling the qualifications
laid down in (a) only. That, in our view, is the plain meaning of sub-
clause (c) and we agree with the submission made by Mr.R.Dwivedi, the
learned Senior counsel for Respondent No.1 in this regard.
We cannot, therefore, read Clause (c) as laying down any rule of
preference in favour of a candidate having M. Phil or Ph.D qualification,
but it is only a provision enabling the appointment of a candidate without the
qualification specified in (b) i.e. M. Phil or a Master’s level degree beyond
that which may include Ph.D. In fact, the interpretation which is sought to
be placed on behalf of the appellant was never placed by the University. On
the other hand, the University was only harping on the purported power of
relaxation. It was only for the first time in the course of the arguments, the
learned counsel for the University made an endeavour to support this
argument advanced by the learned Counsel for the appellant.
We shall now turn our attention to the next contention regarding
relaxation of qualification which loomed large before the High Court. The
stand of the appellant and the University is that the academic qualification
prescribed as well as minimum marks in Masters’ Degree could be relaxed
in appropriate cases, whereas the stand of the first respondent is that
relaxation is contemplated in relation to percentage of marks only. The
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provision for relaxation is contained in the bracketed portion immediately
following sub-clause (a) to Note II of the Ordinance quoted supra. The same
provision is also found in Advertisement No.2 of 1990 which is the first in
the series. Two questions arise here : (1) Whether the power to relax
educational qualification is vested with the competent body/authority? (2)
Factually, was there relaxation? If so, by a competent body or Authority?
The answer to first question turns on the ambit and amplitude of
relaxation clause. It seems to us that the interpretation placed by the
University body in its resolution dated 22.9.1993 is a reasonably possible
view, going by the plain language and the contextual setting of relaxation
provision. Such provision for relaxation could have been thought of to open
up opportunities to the lecturers of long standing and creditable record who
may be deficient in one of the prescribed qualifications, whatever may be the
wisdom behind it. For instance, a candidate under consideration has at least
B.Ed. qualification. There is no serious dispute that the requirement of
M.Ed. degree could be relaxed. The wide scope of the relaxation provision
was recognized by the University authorities even in the year 1990 and that
is why the proposal was placed before the Executive Council to curtail its
scope so as to limit the relaxation to marks only. The Executive Council
approved the same on 23.11.1990 and decided to amend the Ordinance. We
have not been enlightened as to what further happened. No one has pleaded
that the relaxation clause was amended as per the resolution. In the
Ordinance which we extracted above, the same provision in widely couched
language exists. One point we would like to make clear is that we are not
concerned here with the propriety of reserving the power to relax the basic
educational qualification in a given case because such provision has not been
attacked as ultra vires the Constitution or Statute. We need not, therefore,
test it from the angle of Articles 14 and 16. We are concerned here with the
limited aspect of existence or otherwise of the power to relax qualifications,
on the basis of the relaxation clause, as it stands.
Coming to the second question, the first document to be referred to is
Annexure R-5 to the counter of 1st respondent which is a Note circulated to
the Executive Council which met on 31.7.1998 to take a decision on agenda
item No.62 pursuant to the direction given in C.W.P. No. 351/98. Therein it
is mentioned that the appellant was called for interview on the orders of
Vice-Chancellor issued on 15.12.1995 keeping in view the decision of the
Executive Council recorded in resolution No.28 dated 22.9.1993. The said
resolution dated 22.9.1993 reads as follows :-
"The Executive Council considered the
representation of Shri S.K. Kushwaha, lecturer in
Arts and Craft, University College of Education,
and resolved that he is eligible to appear before the
selection committee in terms of the advertisement
as published in February 1990. He is an approved
lecturer of the recognised college. The term
relaxation as used in this advertisement is not
restricted to percentage of marks only as
interpreted by the then executive Council in its
resolution No.82 dated 23.11.90, but has an
extended meaning covering entire essential
qualifications as listed in Clause (a) of this
advertisement".
The High Court was of the view that this resolution has no relevance to
the advertisement No.10 of 1995. That, in our view, amounts to taking
a narrow view of the scope of the resolution. Though the resolution
refers to the ’terms’ and ’qualifications’ stipulated in the advertisement
of February 1990, it holds good for the selections held subsequent to
that date also so long as the conditions of eligibility and qualifications
prescribed are the same. A xerox copy of the advertisement No.2 of
1990 has been filed by the counsel for the University. The fact that the
qualifications in the advertisement of 1990 and the present
advertisement of 1995 are the same admits of no doubt. It is
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specifically mentioned so in the note placed before the Executive
Council for its meeting held on 31.7.1998. In this fact situation, if the
power of relaxation was exercised once, the benefit of such relaxation
will enure to the appellant in relation to the subsequent advertisement
also for the reason that the qualifications did not change and secondly
the selection did not materialise for one reason or the other. However,
going by the language of the resolution, a doubt arises whether the
Executive Council, which is undisputedly the competent authority, had
in fact relaxed the M.Ed. qualification in the case of the appellant. The
resolution dated 22.9.1993 merely sets out the wider scope of the
relaxation clause. It does not say anything more than that. The
statement in the resolution that the appellant is eligible to appear before
the selection committee does not necessarily imply that the power of
relaxation of educational qualification was in fact exercised. The
relevant record only could bear testimony to that fact. There is another
allied aspect. Even if factum of relaxation before or at the time of
passing the resolution dated 22.9.1993 is not established, it would still
be necessary to enquire whether the relaxation was given by competent
authority in December 1995 when the appellant was called for
interview on the orders of the Vice-Chancellor. In this connection,
what is stated in the concluding para of the communication dated
3.9.1998 addressed to the first respondent deserves notice. It is said
therein : "in view of the resolution of the Executive Council this
qualification was relaxable and accordingly he was considered and
selected by the Establishment Committee by relaxing the qualification
of M.Ed". Prima facie it indicates that the Establishment Committee
relaxed the qualification. But, the Establishment Committee which
was incharge of selection cannot usurp the power of relaxation which
is vested in the Executive Council. Therefore, it has to be seen with
reference to the record whether there was relaxation in December 1995
before the appellant was called for interview and if so, such relaxation
was given by the Executive Council, after applying its mind to the
factors justifying relaxation. It is made clear that in case there was due
relaxation in September 1993 by the Executive Council, it is
unnecessary to probe into question of relaxation in December 1995.
To summarise, we hold that the appellant cannot take refuge under
sub-clause (c). He lacks one of the qualifications prescribed in sub-clause
(a), namely, M.Ed. At the same time, we have held that the Executive
Council was empowered to relax the educational qualification but not
merely the requirement as to minimum percentage of marks. We have
expressed a doubt on the question whether the power of relaxation was in
fact exercised in favour of the appellant by the competent authority either
during 1993 or 1995, after applying its mind to the factors warranting
relaxation. That fact has to be verified with reference to records and
additional pleadings if any. The validity or otherwise of the Ordinance
conferring power to relax one of the educational qualifications is left open.
Finally, we must advert to the contention raised by the learned
counsel for the appellant that the delay on the part of the first respondent
and his conduct disentitled him for relief under Article 226 of the
Constitution and the High Court at the instance of the first respondent
should not have gone to the extent of setting aside the appointment made
long back. It is pointed out that the first respondent filed the writ petition
nearly one year after the appointment of the appellant though he was well
aware of such appointment. It is submitted that even though the first
respondent was on study leave for some time he was regularly visiting the
University campus and therefore he must have been aware of
developments. Moreover, it is contented that the first respondent being
fully aware of the decision of the University relaxing the qualifications as
early as in 1993 did not challenge that resolution all these years. On the
other hand, having participated in the selection process and failed to get
selected, he started the present litigation. The learned senior counsel for
the first respondent, Shri R. Dwivedi, countered this contention mainly on
the ground that this objection was not raised before the High Court and,
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therefore, the High Court did not have occasion to consider the same.
Learned counsel submits that it is not open to the appellant to raise this
issue of delay and latches at this point of time. We find from the pleadings
that the appellant did raise the question of delay and latches on the part of
the first respondent. As the case is being remitted to the High Court for
consideration of the points set out above, we feel, it will be appropriate for
the High Court to consider this aspect as well. Whether or not there was
unexplained delay and, if so, whether it will have effect on the ultimate
order that the High Court is inclined to pass will have to be considered by
the High Court. We do not propose to express any view on this aspect. It
is needless to point out that in case the finding of the High Court on the
issue relating to relaxation is in favour of the appellant, no further question
arises.
For the reasons aforesaid, we set aside the judgment of the High
Court and remit the matter to the High Court for fresh consideration in the
light of the declaration of law and the observations made in the judgment,
as expeditiously as possible. The appeal is thus allowed. No costs.
.J.
(S.N. Phukan)
..J.
(P.Venkatarama Reddi)
March 18, 2002.
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