Full Judgment Text
REPORTABL
E
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2457 OF 2006
Bholanath Mukherjee & Ors. .. Appellants
VERSUS
R.K. mission V. Centenary
College & Ors. ..Respondents
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. This appeal is directed against the final
judgment and order of the Calcutta High
st
Court dated 21 September, 2004
in M.A.T. No. 476 of 2004 arising out of Writ
Petition No. 29805(W) of 1997 vide which the
order of the learned Single Judge of the High
Court was set aside.
2. We may notice the essential facts, which
would have a bearing on the determination of
the issues raised in this appeal. Admittedly,
there has been a controversy with regard to
the special status enjoyed by the
Ramakrishna Mission Vivekananda
1
Centenary College at Rahara (hereinafter
referred to as ‘respondent No.1’) for a long
period of time. The College was initially
established in the year 1961 with a grant of
Rs.2 lakhs given by the Government of West
Bengal in the Education Department. The
additional cost for establishing the College
had been borne by the State Government.
th
Subsequently on 25 April, 2002, the
Government of West Bengal, in order to
advance collegiate education and with a view
to reduce the overcrowding in good colleges in
Calcutta decided to set up a three year degree
college at Rahara. Such college was to be set
up on the recommendations of the University
Grants Commission (for short ‘UGC’). The
college was duly established and granted
th
affiliation to Calcutta University on 13 May,
1963. It is a fully aided college; being
sponsored and financed by the State
Government.
3. The controversy herein relates to the
appointment of the Principal of the College.
The post of Principal is included in the
definition of Teacher, as contained in Section
2 Clause 9 of the aforesaid Act. The aforesaid
Clause defines the term Teacher to include a
Professor, Assistant Professor, Lecturer,
Tutor, Demonstrator, Physical Instructor or
any other person holding a teaching post of a
college recognised by the University to which
such college is affiliated and appointed as
such by such college and includes its
Principal and Vice-Principal.
Section 3 of the Act provides “appointment to
the post of a Teacher shall be made by the
Governing Body on the recommendations of
the University and College Service
Commission to be constituted by the State
Government in the manner prescribed”. The
2
appointment on the post of Teachers of a
college is governed by the College Service
Commission established under the West
Bengal College Service Commission Act,
1978. Section 3 of the aforesaid Act is as
under:-
“(1) The State Government shall, with effect
from such date as may by notification,
appoint, constitute Commission by the name
of the West Bengal College Service Commission
consisting of five members of whom one shall
be the Chairman.
(2) Of the members one shall be person who,
not being an educationist, occupies or has
occupied in the opinion of the State
Government, a position of eminence in public
life or in Judicial or administrative service and
the other shall have teaching experience either
as a Professor of a University or as a Principal
for a period of not less than ten years or as a
teacher, other than Principal of a College, for a
period of not less than fifteen years.”
Section 7(1) and Proviso (ii) are as under:-
“Notwithstanding anything contained in any
other law for the time being in force or in any
contract, custom or usage to the contrary, it
shall be the duty of the Commission to select
persons for appointment to the post of
Teachers of a College:
Provided that-
(i)..
(ii) For selection of a person for appointment
to the post of Principal, the Commission shall
be aided by the vice-Chancellor of the
University to which such college is affiliated or
his nominee and a nominee of the Chancellor
of such University.”
3
4. Section 15 provides that “nothing contained
in the Act shall apply in relation to any
college not receiving any aid from the State
Government or any college established and
administered by a minority, whether based
on religion or language.” The State
Government issued Memo No. 752–Edn (CS)
to revise the existing pattern for the
composition of the governing bodies of the
Government sponsored colleges excepting in
cases where the college has a special
constitution on the basis of Trust Deeds or
where the colleges are run by Missionary
Societies on the basis of agreement with the
respective missions. The academic
qualification prescribed for appointment on
the post of Principal by the Government of
West Bengal vide a G.O. No. 149-Edn(CP)
nd
dated 22 February, 1994.
5. It appears that earlier the controversy with
regard to the appointment on the post of
Principal was subject matter of the decision
rendered by this Court in the case of
Bramchari Sidheswar Shai & Ors. Vs. State
1
of W.B. & Ors. . In deciding the controversy
raised in the aforesaid case, this Court has
extensively traced the history with regard to
the setting up of three year degree colleges
under the auspicious of Ramakrishna
Mission Boy’s Home at Rahara. Therefore, it
is not necessary for us to recapitulate the
entire sequence of events in the present
proceedings.
6. Suffice it to say that the aforesaid controversy
had arisen in the context of a challenge made
in Writ Petition being C.O.No. 12837(W) of
1
(1995) 4 SCC 646
4
1980 to the appointment of Swami
Shivamayananda, who was till then Head of
Ramakrishna Mission, Vidya Mandir, Bellur
Math, as the Principal of Ramakrishna
Mission College. The petitioners had claimed
that Shivamayananda did not have the
requisite qualifications for being appointed as
the Principal and that he had not been
appointed by a duly constituted Governing
Body. The prayers in the writ petition were
for the issue of (i) a writ in the nature of
mandamus commanding the Government of
West Bengal to reconstitute the Governing
Body of the Ramakrishna Mission College
according to standard pattern for Governing
Bodies of sponsored colleges as per
Government Memo No. 752-Edn (CS)/C. S.
th
30-3/77 dated 18 April, 1978; (ii) a writ
declaring that the Ramakrishna Mission
College is governed by West Bengal Act of
1975 and West Bengal Act of 1978; (iii) a writ
in the nature of quo warranto restraining
Swami Shivamayananda as Principal of
Ramakrishna Mission College and other
incidental writs.
7. During the pendency of this writ petition, the
University of Calcutta issued three notices to
the Ramakrishna Mission to reconstitute the
Governing Bodies of the Ramakrishna
Mission Residential College, Narendrapur,
Ramakrishna Mission Shiksha Mandir,
Howrah and Ramakrishna Mission Vidya
Mandir, Howrah. The legality of these notices
was challenged by the Ramakrishna Mission
by filing an Interlocutory Application in the
writ petition. The writ petition was resisted
by the Ramakrishna Mission on the ground
that being a minority based on religion, the
institutions established by it would be
5
protected under Article 30(1) of the
Constitution. Therefore, the West Bengal Act
of 1975 and West Bengal Act of 1978 would
not be applicable. The Ramakrishna Mission
had also claimed its right to establish and
maintain institutions for religious and
charitable purposes and to manage its own
religious affairs; to own and acquire movable
and immoveable property; and to administer
such property in accordance with the law.
The aforesaid rights were claimed under
Article 26 of the Constitution of India. The
writ petition was dismissed by the learned
Single Judge. It was held that institutions
established by Ramakrishna Mission were
protected under Article 30(1) of the
Constitution of India. It was also held that
the West Bengal Act of 1975 and West Bengal
Act of 1978 would not be applicable. It
quashed the three notices issued by the
Calcutta University. It, however, rejected the
claim of Ramakrishna Mission under Article
26(a) of the Constitution of India. The
aforesaid judgment was carried in appeal
before the Division Bench by the writ
petitioners as well as the State of West
Bengal and Calcutta University. The Division
Bench heard all the appeals together, and by
a common judgment dismissed all the
appeals. The Division Bench upheld the
conclusion of the learned Single Judge that
Ramakrishna Mission being a minority based
on religion was protected under Article 30(1)
of the Constitution of India. It further held
that the Ramakrishna Mission had the right
to establish educational institutions as
religious denomination under Article 26(a) of
the Constitution of India. It further held that
both the West Bengal Act of 1975 and
West Bengal Act of 1978 would not be
applicable as these enactments did not
6
contain any express provision indicating their
application to educational institutions
established and maintained by the
Ramakrishna Mission. It further observed
that to hold otherwise would lead to
infringement of the rights enjoyed by the
Ramakrishna Mission under Article 26(a) and
26(b) of the Constitution. However, it left
open the question of legality or otherwise of
the direction contained in the notices issued
by the Calcutta University to the
Ramakrishna Mission for reconstitution of
Governing Bodies of the Ramakrishna
Mission Residential College, Narendrapur,
Ramakrishna Mission Shiksha Mandir,
Howrah and Ramakrishna Mission Vidya
Mandir, Howrah.
8. The aforesaid judgment of the Division Bench
was challenged before this Court in a number
of appeals, which has been noticed above.
These appeals were decided by this Court by
nd
a common judgment dated 2 July, 1995
in the case of Bramchari Sidheswar Shai
(supra) .
9. This Court formulated six points arising for
consideration in the appeals, which were as
follows:-
“1. Can the citizens of India residing in the
State of West Bengal who are professing,
practising or propagating the religious
doctrines and teachings of Ramakrishna and
have become his followers, claim to belong to a
minority based on Ramakrishna religion which
was distinct and different from Hindu religion
7
and as such entitled to the fundamental right
under Article 30(1) of the Constitution of India,
of establishing and administering educational
institutions of their choice through
Ramakrishna Mission or its branches in that
State ?
2. Do persons belonging to or owing allegiance
to Ramakrishna Mission belong to a religious
denomination or any section thereof as would
entitle them to claim the fundamental rights
conferred on either of them under Article 26 of
the Constitution of India ?
3. If persons belonging to or owing allegiance
to Ramakrishna Mission is a religious
denomination or a section thereof, have they
the fundamental right of establishing and
maintaining institutions for a charitable
purpose under Article 26(a) of the Constitution
of India?
4. If Ramakrishna Mission as a religious
denomination or a section thereof establishes
and maintains educational institutions, can
such institutions be regarded as institutions
established and maintained for charitable
purpose within the meaning of Article 26(a) of
the Constitution of India ?
5. Is Ramakrishna Mission College at Rahara
established and maintained by Ramakrishna
Mission and if so, will the constitution of its
governing body by the Government of West
Bengal amount to infringement of
Ramakrishna Mission’s fundamental right to
establish and maintain an educational
institution under Article 26(a) of the
Constitution of India?
8
6. Can the court direct the West Bengal
Government because of W.B. Act 1975 and
W.B. Act 1978, to constitute governing body on
a “standard pattern” of sponsored college
envisaged under its Memo dated 18-4-1978 in
respect of Ramakrishna Mission College when
that memo itself says that colleges established
and maintained by Missions on the basis of
agreements cannot be treated as sponsored
colleges for the purpose of constituting
governing bodies for them on a “standard
pattern” ?”
10. Upon consideration of the entire matter, the
conclusions recorded were as under :-
Point 1
(i) For the foregoing reasons, we hold that
the citizens of India residing in the State
of West Bengal, who are professing,
practising or propagating the religious
doctrines and teachings of Ramakrishna
and have become his followers, cannot
claim to belong to a minority based on
Ramakrishna religion which was distinct
and different from Hindu religion and as
such are not entitled to the fundamental
right under Article 30(1) of the
Constitution of India, of establishing and
administering educational institutions of
their choice through Ramakrishna
Mission or its branches in that State and
answer Point 1 accordingly, in the
negative.
Point 2
9
(ii) For the said reasons, we hold that
persons belonging to or owing their
allegiance to Ramakrishna Mission or
Ramakrishna Math belong to a religious
denomination within Hindu religion or a
section thereof as would entitle them to
claim the fundamental rights conferred
on either of them under Article 26 of the
Constitution of India and answer Point 2,
accordingly, in the affirmative.
Point 3
(iii) Since we have held while dealing with
Point 2 which arose for our consideration
that the persons belonging to or owing
allegiance to Ramakrishna Mission or
Ramakrishna Math as followers of
Ramakrishna, form a religious
denomination in Hindu religion, as a
necessary concomitant thereof, we have
to hold that they have a fundamental
right of establishing and maintaining
institutions for a charitable purpose
under Article 26(a) of the Constitution of
India, subject, of course, to public order,
morality and health envisaged in that
very article. Point 3 is, accordingly
answered, in the affirmative.
(iv)
On Point Nos. 4 & 5 , it was observed as
follows:-
“We think that the learned Judges of the
High Court should not have decided on
the general question whether educational
institutions established and maintained
by religious denomination including those
established and maintained by
Ramakrishna Mission for general
1
education get the protection of Article
26(a) of the Constitution when that
question in a general form, was not really
at issue before them. Therefore, the views
expressed on the question shall,
according to us, ought to be treated as
non est and the question is left open to
be decided in proper case, where such
question really arises and all the parties
who might be concerned with it are
afforded adequate opportunity to have
their say in the matter.”
(v) On Point No. 6 , it was observed as follows:-
“67. As stated above, the State
Government has excepted the
Ramakrishna Mission College at Rahra in
the matter of constituting a Governing
Body on a standard pattern for the
obvious reason that constituting such a
governing body for a college like
Ramakrishna Mission College which was
all through allowed to have a governing
body constituted by Ramakrishna
Mission, which had built the College on
its land conceding to the request made in
that behalf by the State Government itself
on the initiation of the Central
Government, may not be just. Thus when
Ramakrishna Mission College had come
to be built, established and managed by
the Ramakrishna Mission, it is difficult
for us to think that the learned Judges of
the Division Bench of the High Court
were not right in holding that the
Government should not be directed by
issue of a mandamus, to constitute a
governing body for the Ramakrishna
Mission College on a standard pattern
taking recourse to the W.B. Act of 1975
1
and the W.B. Act of 1978, although for its
own reasons. Therefore, in the peculiar
facts and circumstances in which
Ramakrishna Mission College at Rahra
was established on Ramakrishna
Mission’s land and allowed to be
administered by the Ramakrishna
Mission through its own governing body,
we feel that interests of justice may suffer
by directing the State Government to
constitute its own governing body on a
standard pattern of the usual sponsored
colleges, as prayed for by the writ
petitioners. However, the view we have
expressed in the matter shall not come in
the way of the State Government to
change their earlier arrangement with the
Ramakrishna Mission in the matter of
governance of the Ramakrishna Mission
College, if on objective considerations
such change becomes necessary in the
larger interests of students, teachers and
other employees of that College and is so
permitted by law.
68. In the said view we have taken in the
matter of constituting a Governing Body
by the Government of West Bengal in
respect of the Ramakrishna Mission
College at Rahra, there is no need to go
into the question that there has been
infringement by the Government of
Ramakrishna Mission’s fundamental
rights to establish and maintain
educational institutions under Article
26(a) of the Constitution of India
inasmuch as such a question does not
arise, in view of the answer already given
by us on Point 3 above. So also, question
of directing the West Bengal Government
because of the W.B. Act of 1975 and the
1
W.B. Act of 1978, to constitute governing
body on “standard pattern” of sponsored
college envisaged under its Memo dated
18-4-1978 in respect of Ramakrishna
Mission College, cannot arise.
69. Points 4 to 6 are accordingly
answered.”
11. After the decision in the aforesaid case, again Writ
Petition No.29805(W) of 1997 was filed in the
Calcutta High Court challenging initially the
appointment of Swami Shivamayananda
(Respondent No.16 herein) and Swami Divyananda
(respondent No.17 herein) as Principal and
Honorary Vice-Principal respectively. It was alleged
that appointment of both the respondents had been
made without following the provisions of the West
Bengal Act of 1975 and West Bengal Act of 1978.
However, both the persons during the pendency of
the writ petition before the High Court went on open
ended leave from their respective posts. Thereafter
th
on 14 May, 1999, by an Office Order
No.RKMVCC/21/99, the college authorities elevated
Swami Sukadevananda (respondent No. 3 herein)
1
Vice-Principal of the college to the post of Acting
Principal with immediate effect, again without
following the West Bengal Act of 1975 and West
Bengal Act of 1978. He was designated as the
th
Principal of the College on 20 March, 2001 vide
Office Order No.3/RKMVCC/21/2001. The
appointment of Swami Sukhadevananda, as
Principal of the College led to the amendment of the
writ petition incorporating a challenge to his
appointment.
12. It is the case of the appellants, that the respondent
No. 3 was only First class M.Sc. in Biochemistry
from Karnataka University and had worked as
Scientific Officer in Bhabha Atomic Research
Centre, Bombay for about four years. As far as
teaching experience in the college is concerned, he
had only six years of such experience. Thus,
according to the appellants, he did not possess the
requisite qualifications for the post of Principal as
laid down in the above mentioned Government
1
nd
order dated 22 February, 1994. The learned Single
th
Judge by his judgment dated 29 September, 2003
allowed the writ petition and it was observed as
under;
“Therefore, I hold that as regard management,
administration and maintenance of this
Institution the State government at present
has denuded itself its authority or right to
interfere with. But the provisions of the Acts
namely West Bengal College Teachers (Security
of Service) Act, 1975, West Bengal College
Service Commission Act, 1978 and the
Calcutta University First Statute, 1979 will
have application unless these laws by
themselves exempt these organizations from
being applicable. I do not find any such
exception.”
The appointment of the Principal was declared not to
have been made under the provisions of the West Bengal
Act of 1975, West Bengal Act of 1978 and the Calcutta
University First Statute, 1979. A direction was issued to
the Governing Body of the College to take steps to fill the
post either temporarily or permanently in accordance
with laws in force. Aggrieved, the Ramakrishna Mission
College went in appeal before the Division Bench. In
order to consider the entire matter, the Division Bench
1
analyzed the judgment of this Court in Bramchari
Sidheswar Shai’s case (supra) extensively. It noticed
the conclusions recorded by this Court as extracted by us
above. The Division Bench concluded as under:-
“Thus, from the questions raised by the
Hon’ble Court and the answers given to each of
them by the Hon’ble Court as indicated above,
we are fully convinced that although the
Hon’ble Court declined to give protection of
Article 30(1) or protection under Section 26(a)
of the Constitution to the Ramakrishna
Mission and the college established by it, the
Court certainly decided in a most assertive
manner that having regard to the background
of the establishment of the college and having
regard to the stand taken by the Government
of West Bengal since inception of the college in
the matter of its governance and management
with special reference to office memo dated
th
18 April, 1978, there is no need to ask for
implementation of the provisions of the Act of
1975 or the Act of 1978.”
13. The Division Bench negated the contentions of the
learned counsel for the writ petitioners/ appellants
that in view of the provisions contained in the West
Bengal Act of 1975, West Bengal Act of 1978 and
the Calcutta University First Statute, 1979, the
college could not be allowed to have the Monk as
Principal. It is observed that the Government was
1
very much aware of the fact that in the matter of
this college, the general procedure for selection of a
Principal through the College Service Commission
shall not be made applicable. It is further observed
that natural consequence of the aforesaid
conclusion was that there would be no application
under the provisions of the Calcutta University First
Statute, 1979, aimed at filling up of temporary
vacancy of the post of Principal like other
Government sponsored colleges. In the concluding
paragraphs, the Division Bench observed as
follows:-
“After close examination of the judgment of the
Apex Court rendered in the case of Bramchari
Sidheswar Shai’s (supra), we are seriously
contemplating whether the present writ
petition at all was maintainable before the
learned Single Judge as the parties of the
present writ petition are almost identical of the
previous writ petition and almost same issues
as raised in the present petition were matter of
consideration before the Apex court and
further we are of the view that following the
long established principle of judicial discipline
and binding precedent, it was not at all
permissible to make any departure from the
conclusion reached by the Apex court which
has a binding effect upon the writ petitioners
who were parties to the earlier adjudication
1
and that apart, the present writ petition is also
barred under the principle of res judicata.
Thus, having regard to the submissions of
contesting parties and on examination of the
materials placed before us, we are of firm view
that following the judgment of the Apex Court
rendered in the case of Bramchari Sidheswar
Shai’s (supra) and in view of the recent office
memo of the Government of West Bengal dated
th
30 April, 2004, it was not permissible to
reopen the issue once again and to issue any
writ dishonouring the mandate of the Apex
Court when admittedly the State Government
has not deviated form its earlier stand relating
to the special status accorded to the college.
We, therefore, find sufficient merit in the
present appeal and in the stay petition and we
are inclined to allow the both.
Accordingly, both the appeal and the stay
petition are allowed resulting in dismissal of
the writ petition and setting aside the
judgment and order of the learned Single
Judge delivered in connection with Writ
Petition No. 29805(W) of 1997. We, however,
make no order as to costs considering the fact
and circumstances of the case.”
14. This judgment is the subject matter of the present
appeal. We have heard the learned counsel for
parties.
15. Mr. Prashant Bhushan, learned counsel appearing
for the appellants submitted that even if the College
1
established by the Ramakrishna Mission enjoys a
special status, the appointment on the post of
Principal would still has to be made in conformity
with the qualifications prescribed by the
nd
Government of West Bengal in its Order dated 22
February, 1994. Respondent No.3 does not even
possess the qualifications prescribed by the
University Grants Commission. Moreover,
respondent No.3 has not cleared the eligibility test
N.E.T./S.L.E.T. for Lecturer as required by the
UGC. His initial appointment as Acting Principal
and thereafter his appointment as permanent
Principal was null and void having been made
without following the provisions contained in the
West Bengal Act of 1975 and West Bengal Act of
1978. Learned counsel submits that the
qualifications prescribed under the Government
nd
Order dated 22 February, 1994 were in fact
amended by the subsequent G.O.s being G.O. No.
th
625-Edn (CS) dated 16 June, 1999 read with G.O.
th
No.1047-Edn (CS) dated 20 August, 2002. These
1
qualifications were duly published through
advertisement No. 2 of 2004. For the post of
Principal, the qualifications prescribed are as
under:-
“I. For General Degree Colleges:
(A) Academic qualifications:
(a) Master degree in Arts/Science/
Commerce/Music/Fine Arts with at least 55%
marks or its equivalent grade and good
academic record; Ph.D. Degree or evidence of
its equivalent published work of high standard
and teaching/research experience in an
affiliated degree college or University/Other
Institutions of Higher Education for at least
15 (fifteen) years preferably with administrative
experience. Or
(b) Serving as reader in any affiliated degree
College or University/research Institute with
total teaching experience of not less than 15
years. Or
(c) Serving as Selection Grade Lecturer in
any affiliated degree college with at least 55%
marks at the Master’s level and good academic
record with teaching experience not less than
15 years in any academic Institution with
authenticated administrative experience of at
least five years and further having published
work equivalent to Ph.D. degree, the
equivalence be evaluated by the
University/Selection Committee consisting of
the subject experts who in turn will have to
mainly look in to the following aspects:-
2
1. Number of research paper
published,
2. Quality of research paper,
3. Relevance of the topic,
4. Journals where these have been
published.”
16. It is submitted that respondent No.3 does not
possess the Ph.D, degree. He also did not possess
fifteen years administrative experience at the time of
his appointment. Learned counsel further
submitted that respondent No.3 has been appointed
on the said post merely because he is a monk at the
Ramakrishna Mission. The very purpose of
prescribing minimum qualifications and method of
selection for an important post like Principal of an
educational institution has been defeated. Learned
counsel further submitted that the Division Bench
has wrongly relied on the judgment of Bramchari
Sidheswar Shai’s case (supra) . The aforesaid
judgment had no relevance to the issue which has
been raised in the present proceedings.
2
17. On the other hand, Mr. L.N. Rao, learned senior
counsel appearing for the respondent Nos.1, 2 and
3 submits that the litigation in this case does not
survive as the appellants have retired. He further
submits that the appellants have not sought a writ
of quo warranto rather the relief sought is that one
of the senior teachers should be appointed as
Principal. The writ petition was based on individual
grievances. The relief claimed is also for the
redressal of individual grievances. All the appellants
had made a claim based on their seniority and
qualifications. Since all the appellants have retired
in the mean time, the issue has become academic.
This Court will, therefore, decline to examine the
matter on merits. He relies on the judgment of this
Court in the case of M.L. Binjolkar Vs. State of
2
M.P. . On merits, the learned counsel submits that
the grievances of the appellants were that the
respondent No.3 lacked fifteen years of experience.
However, by now respondent No.3 possesses the
2
(2005) 6 SCC 224
2
required fifteen years experience. He also relies on
certain observations made by this Court in the case
3
of Ram Sarup Vs. State of Haryana & Ors . The
entire controversy has been rendered academic in
the peculiar facts and circumstances of this case. In
the alternative, the learned senior counsel submits
that the writ petition would have to be treated as
public interest litigation. It is, however, settled by
this Court that public interest litigation would not
be maintainable in service law cases. In support of
this submission, he relies on the judgments of this
Court in the cases of Dr. Duryodhan Sahu & Ors.
4
Vs. Jitendra Kumar Mishra & Ors and Gurpal
5
Singh Vs. State of Punjab & Ors. . Therefore,
again no relief can be granted to the writ
petitioners/appellants.
18. We have considered the submissions made by the
learned counsel for the parties. In our opinion,
there is much substance in the submissions made
3
(1979) 1 SCC 168
4
(1998) 7 SCC 273
5
(2005) 5 SCC 136
2
by Mr. L.N. Rao, Mr. Dipankar P. Gupta and Mr.
Bhaskar P. Gupta, learned senior counsel that at
this stage, litigation in this case does not survive as
the appellants have retired. Even if the writ petition
is allowed and the appointment of respondent No.3
is declared null and void, none of the appellants
could be appointed on the post of Principal. A
perusal of the averments made in the writ petition
before the High Court would show that the
gravamen of the grievances of the writ
petitioners/appellants was that they were all senior
to Swami Sukhadevananda. It was further pointed
out that he had only six years of teaching
experience, while G.O. No. 149-Edn(CP) dated
nd
22 February, 1994 prescribes a minimum teaching
experience of sixteen years with administrative
experience. It was pointed out that on the one
hand, respondent No.3 did not possess the
necessary experience and was appointed as the
Principal. On the other hand, the applications of
the petitioner Nos. 1, 9 and 12 for the post of
2
Principal made through appropriate channel were
not at all considered at any stage by the appropriate
authority, though they are more qualified and
senior to Swami Sukhadevananda. It was further
pointed out that petitioners are suffering irreparable
loss in the form of deprivation from being promoted
as a Teacher-in-Charge and compelled to serve
under a junior in service and possessing lesser
qualifications. Again in Paragraph 41, it is stated
that Swami Divyananda is junior to all the
petitioners. It was further pointed out that Dr.
Biman Kumar Mukherjee, was the then petitioner
No. 1 and the then senior most Teacher. He had
put in more than three decades of lawful and
approved service to the Institution. He was,
therefore, lawful claimant to the post of Teacher-in-
Charge of the college. Therefore, it was a matter of
great humiliation and injustice to all the petitioners
to be forced to serve under an illegally appointed
person, who is junior to them all. In Ground 3 of the
writ petition, it is specially pleaded as follows:-
2
“For that, it is incumbent upon the
respondents to appoint the senior most
teacher, as Teacher-in-Charge of the college in
terms of the order contained in the letter
st
No.C/31/Cir dated 1 January, 1995 and
Statute 101B (as amended) and for such
failure of the respondents to act in accordance
with law the petitioners have been deprived of
their rights to the post and have suffered
demotion and financial loss.”
From the above, it becomes evident that the grievances of
the writ petitioners were that they have been compelled
to work under a person, who was junior to them. The
petitioners having retired from service, no relief could
possibly be granted to them, even if the appointment of
respondent No.3 is held to be illegal or void. In such
circumstances, in our opinion, it would be an exercise in
futility to examine the merits of the controversy raised in
the appeal. By the retirement of all the appellants herein,
the issues raised herein have been rendered academic.
In M.L. Binjolkar’s case (supra) , this Court was
considering the legality of the orders passed by the
Madhya Pradesh State Administrative Tribunal,
Jabalpur, setting aside the orders of compulsory
retirement passed against a number of employees by the
2
State of Madhya Pradesh. The four employees were
directed to be reinstated. The writ petition filed by the
State of Madhya Pradesh was dismissed. The employees
concerned were permitted to join back pursuant to the
orders of reinstatement passed by the Administrative
Tribunal. All the four employees, who were so reinstated,
retired during the pendency of proceedings. The appeal
filed by the State was dismissed by this Court with the
following observations:-
“In view of the undisputed position that the
four employees who were directed to be
reinstated had, in fact, joined back service and
have retired on reaching the age of
superannuation, therefore, examination in
their cases as to the correctness of the view
expressed by the High Court would be an
exercise in futility. Though, implementation of
the Court’s order does not render challenge to
an order infructuous, yet the fact situation of
the present case makes the issue academic.
This Court did not grant stay on the High
Court’s order. The employees concerned, as
noted above after reinstatement have retired.
In these peculiar circumstances, we do not
think it necessary to examine correctness of
the High Court’s order on merits. Therefore,
the appeals filed by the State — Civil Appeals
Nos. 8695-97 of 2002 and 8663 of 2002 are
dismissed. We make it clear that we have not
expressed any opinion on the correctness of
the High Court’s judgment as we have
2
dismissed the appeals only on the ground that
the employees concerned have already retired
and it would not be in the interest of anybody
to go into the merits.”
Similarly, in the case of Sumedico Corporation & Anr.
6
Vs. Regional Provident Fund Commr. , this Court
declined to go into the vires of Section 7(a) of the
Employees Provident Fund and Miscellaneous Provisions
Act, 1952 as during the pendency of the appeal, the
Legislature itself amended the provisions of the Act by
inserting Section 7(d) providing for remedy of an appeal
before the Appellate Tribunal. In view of this
development, it was observed that the question of
challenge to the vires of Section 7(a) on the ground that
there was no appeal provided under the Act does not
survive and it has become academic. In the case of State
7
of Manipur & Ors. Vs. Chandam Manihar Singh , the
respondent had been removed from the post of Chairman
of the Manipur State Pollution Control Board by the
Governor of Madhya Pradesh in exercise of the powers
under Section 5(3) read with Section 6(1)(g) of the Act by
6
(1998) 8 SCC 381
7
(1999) 7 SCC 503
2
th
the order dated 19 October, 1998. The respondent
carried the matter in a writ petition before the High Court
of Assam, Imphal Branch. The learned Single Judge,
who heard this writ petition was pleased to allow the
th
same on 30 April, 1999. It may be noted that the
learned Single Judge had directed that the respondent
has continued to hold the office of the Chairman as his
th
removal was set aside and his tenure will end on 15
th
October, 1999 counting three years from 16 October,
1996 when he was appointed as the Chairman of the
Board pursuant to earlier order. The State of Manipur
unsuccessfully carried the matter in an appeal before the
Division Bench. When the appeal filed by the State of
Manipur came up for hearing before this Court, the
learned counsel for the respondent submitted that
pursuant to the orders of the High Court, the respondent
has continued as a Chairman of the Board and his
tenure is almost coming to end and he does not intend to
th
continue as Chairman beyond 15 October, 1999. It was
submitted by the learned counsel for the respondent that
the issue raised by the State of Manipur has almost
2
become academic as no interim relief was granted by this
Court against the order of the High Court. Nor any
interim relief had been granted pending appeal against
the order of the learned Single Judge by the Division
Bench of the High Court. In these circumstances, this
Court observed as follows:-
“Having given our anxious consideration to the
rival contentions, we find that as the High
Court’s direction in favour of the respondent’s
tenure which is to expire on 15-10-1999 has
almost worked itself out and less than a month
remains for him to act as Chairman of the
Board, the first grievance raised by learned
Senior Counsel for the appellants in
connection with the removal of the respondent
by order dated 19-10-1998 has become of
academic interest. We, therefore, did not
permit learned Senior Counsel for the
appellants to canvass this point any further
before us. That takes us to the consideration of
the second point.”
In our opinion, the aforesaid observations of this Court
would be clearly applicable in the facts and
circumstances of this case.
19. There is another reason why no relief, at present
could perhaps be granted to the appellants. Throughout
3
the proceedings before the High Court as well as before
this Court, no interim relief was granted by restraining
respondent No.3 from performing the functions of a
Principal. He has continued to function on the aforesaid
th
basis since his appointment on 14 May, 1999 as Acting
rd
Principal and then on from 23 March, 2001 onward as
Principal. Even according to the appellants, at the time
of his appointment, respondent No.3 had possessed the
experience of only six years. Therefore, by now, he would
have more than fifteen years of required experience for
the post of Principal. Therefore, the ground that the
respondent No.3 was not qualified as he did not possess
the necessary experience would also no longer be
available to the appellants.
20. In similar circumstances, this Court, in the case of
Ram Sarup (supra), observed as follows:-
“The question then arises as to what was the
effect of breach of clause (1) of Rule 4 of the
Rules. Did it have the effect of rendering the
appointment wholly void so as to be completely
ineffective or merely irregular, so that it could
be regularised as and when the appellant
acquired the necessary qualifications to hold
3
the post of Labour-cum-Conciliation Officer.
We are of the view that the appointment of the
appellant was irregular since he did not
possess one of the three requisite
qualifications but as soon as he acquired the
necessary qualification of five years’ experience
of the working of Labour Laws in any one of
the three capacities mentioned in clause (1) of
Rule 4 or in any higher capacity, his
appointment must be regarded as having been
regularised. The appellant worked as Labour-
cum-Conciliation Officer from January 1, 1968
and that being a post higher than that of
Labour Inspector, or Deputy Chief Inspector of
Shops or Wage Inspector, the experience
gained by him in the working of Labour Laws
in the post of Labour-cum-Conciliation Officer
must be regarded as sufficient to constitute
fulfilment of the requirement of five years’
experience provided in clause (1) of Rule 4. The
appointment of the appellant to the post of
Labour-cum-Conciliation Officer, therefore,
became regular from the date when he
completed five years after taking into account
the period of about ten months during which
he worked as Chief Inspector of Shops. Once
his appointment became regular on the expiry
of this period of five years on his fulfilling the
requirements for appointment as Labour-cum-
Conciliation Officer and becoming eligible for
that purpose, he could not thereafter be
reverted to the post of Statistical Officer. The
order of reversion passed against the
appellant, was, therefore, clearly illegal and it
must be set aside.”
A perusal of the above would show that the appellant
therein did not possess the necessary experience of five
3
years of the working of labour laws. It was held that his
appointment was irregular since he did not possess the
necessary experience. However, during the pendency of
the proceedings, he had acquired the necessary
experience and, therefore, the appointment must be
regarded as having been regularised. The aforesaid ratio
would be squarely applicable to the appointment of
respondent No.3.
21. Mr. Prashant Bhushan, however, submitted that the
appeal would not be rendered infructuous by the mere
retirement of the appellants. Learned counsel submitted
that all the appellants have been engaged in the field of
education throughout their lives. Therefore, deeply
interested in ensuring that the standards of education
are maintained. They are deeply concerned that of
appointment for the post of Principal shall be made in
accordance with the statutory provisions. Therefore, the
appellants would have the locus standi to continue the
proceedings.
3
22. We are unable to accept the aforesaid submission
made by the learned counsel. As noticed in the earlier
part of the judgment, the entire pleadings in the writ
petition are founded on the personal grievance of the writ
petitioners/appellants. The writ petitioners have not
come before this Court as educationists. Merely because
they are senior most teachers in the same institution,
would not necessarily give rise to the presumption, that
they had filed the writ petition in public interest. In our
opinion, a pure and simple service dispute is sought to
be camouflaged as a public interest litigation. This Court
on numerous occasions negated such efforts in
disguising the personal grievances as public interest
litigation. It is, however, not necessary to recapitulate the
oft quoted caution, save and except the observations
made by this Court in the case of Gurpal Singh (supra) .
In paragraphs 10, 11 and 12 it is observed as follows :
“ 10. Public interest litigation is a weapon
which has to be used with great care and
circumspection and the judiciary has to be
extremely careful to see that behind the
beautiful veil of public interest an ugly private
malice, vested interest and/or publicity-
3
seeking is not lurking. It is to be used as an
effective weapon in the armoury of law for
delivering social justice to the citizens. The
attractive brand name of public interest
litigation should not be allowed to be used for
suspicious products of mischief. It should be
aimed at redressal of genuine public wrong or
public injury and not publicity-oriented or
founded on personal vendetta. As indicated
above, court must be careful to see that a body
of persons or member of the public, who
approaches the court is acting bona fide and
not for personal gain or private motive or
political motivation or other oblique
consideration. The court must not allow its
process to be abused for oblique
considerations by masked phantoms who
monitor at times from behind. Some persons
with vested interest indulge in the pastime of
meddling with judicial process either by force
of habit or from improper motives and try to
bargain for a good deal as well as to enrich
themselves. Often they are actuated by a
desire to win notoriety or cheap popularity.
The petitions of such busybodies deserve to be
thrown out by rejection at the threshold, and
in appropriate cases with exemplary costs.
11. The Council for Public Interest Law set up
by the Ford Foundation in USA defined “public
interest litigation” in its Report of Public
Interest Law, USA, 1976 as follows:
“Public interest law is the name that has
recently been given to efforts which provide
legal representation to previously
unrepresented groups and interests. Such
efforts have been undertaken in the
recognition that ordinary marketplace for legal
services fails to provide such services to
significant segments of the population and to
significant interests. Such groups and
3
interests include the proper environmentalists,
consumers, racial and ethnic minorities and
7
others.” [See B. Singh (Dr.) v. Union of India ,
SCC p. 373, para 13.]
12. When a particular person is the object and
target of a petition styled as PIL, the court has
to be careful to see whether the attack in the
guise of public interest is really intended to
unleash a private vendetta, personal grouse or
some other mala fide object. Since in service
matters public interest litigation cannot be
filed there is no scope for taking action for
contempt, particularly, when the petition is
itself not maintainable. In any event, by order
dated 15-4-2002 this Court had stayed
operation of the High Court’s order.”
The aforesaid observations have been reiterated by this
Court in the case of P.Seshadri Vs. S.Mangati Gopal
8
Reddy & Ors , in the following words:-
“The High Court has committed a serious error
in permitting respondent No.1 to pursue the
writ petition as a public interest litigation. The
parameters within which Public Interest
Litigation can be entertained by this Court and
the High Court, have been laid down and
reiterated by this Court in a series of cases. By
now it ought to be plain and obvious that this
Court does not approve of an approach that
would encourage petitions filed for achieving
oblique motives on the basis of wild and
reckless allegations made by individuals, i.e.,
busybodies; having little or no interest in the
proceedings. The credentials, the motive and
the objective of the petitioner have to be
apparently and patently aboveboard.
8
2011 (4) SCALE 41
3
Otherwise the petition is liable to be dismissed
at the threshold.”
23. We are, therefore, unable to
accept the aforesaid submission as it is tantamount to
treating the writ petition as a public interest litigation.
As noticed above, the entire grievance of the writ
petitioners/appellants was personal. They were all
aggrieved and humiliated for being compelled to serve
under a Principal junior to them in service. Therefore, it
could not be treated as a public interest litigation. This
Court has repeatedly disapproved the tendency of
disgruntled employees disguising pure and simple service
dispute as public interest litigation. The observations
made by this Court in the case of Dr. B. Singh vs.
9
Union of India & Ors. would be of some relevance and
we may notice the same. In paragraph 16, it is observed
as follows :
“As noted supra, a time has come to weed out
the petitions, which though titled as public
interest litigations are in essence something
else. It is shocking to note that courts are
flooded with a large number of so-called public
9
(2004) 4 SCC 363
3
interest litigations, whereas only a minuscule
percentage can legitimately be called as public
interest litigations. Though the parameters of
public interest litigation have been indicated
by this Court in a large number of cases, yet
unmindful of the real intentions and
objectives, courts at times are entertaining
such petitions and wasting valuable judicial
time which, as noted above, could be otherwise
utilized for disposal of genuine cases. Though
in Duryodhan Sahu (Dr) v. Jitendra Kumar
8
Mishra this Court held that in service matters
PILs should not be entertained, the inflow of
the so-called PILs involving service matters
continues unabated in the courts and
strangely are entertained. The least the High
Courts could do is to throw them out on the
basis of the said decision.”
24. We are also unable to accept the submission of
Mr. Prashant Bhushan that the writ petition can be
treated as a writ in the nature of a quo warranto. It
appears that the appellants had not claimed a writ of quo
warranto either before the learned Single Judge or before
the Division Bench of the High Court. Even in this
Court, it appears to us that Mr. Prashant Bhushan has
made the submission as a weapon of last resort. As
noticed earlier, during the pendency of the proceedings,
respondent No. 3 has acquired the experience of sixteen
years. The requirement under Rules was of fifteen years
3
experience, it would, therefore, not be appropriate to go
into the question as to whether a writ of quo warranto
would lie in the present case or not. In our opinion, it
would be an exercise in futility. The issue has become
purely academic.
25. Before we part with this judgment, we make it clear
that we have not expressed any opinion on the
correctness of the High Court’s judgment as we have
dismissed the appeal only on the ground that the
concerned appellants have already retired from service
and it would not be in the interest of anybody to go into
the merits.
26.In view of the above, the appeal is dismissed.
……………………………..J.
[B.Sudershan Reddy]
3
……………………………..J.
[Surinder Singh Nijjar]
New Delhi
April 18, 2011.
4