Full Judgment Text
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PETITIONER:
THE UNIVERSITY OF COCHIN
Vs.
RESPONDENT:
DR. N. RAMAN NAIR & ORS.
DATE OF JUDGMENT30/10/1974
BENCH:
BEG, M. HAMEEDULLAH
BENCH:
BEG, M. HAMEEDULLAH
KRISHNAIYER, V.R.
UNTWALIA, N.L.
CITATION:
1974 AIR 2319 1975 SCR (2) 526
1975 SCC (3) 628
ACT:
Cochin University Act (30 of 1971) s. Scope of
HEADNOTE:
Section 6 of the Cochin University Act, 1971, read as a
whole, indicates that it was meant to eliminate
unjustifiable discrimination. Section 6(2) lays down the
mandatory duty upon the University to observe cls. (a), (b)
and (c) of Rule 14 of ’ ha Kerala State Subordinate Service
Rules muiatis mutandis. Rule 14 lays down rule of rotation
in making appointments. Clause (C) of the Rule lays down a
scheme of rotation for every block of 20 vacancies, the
first vacancy to be filled by open competition. The
Syndicate of the University passed a resolution in 1972
providing that the rules mentioned in s. 6(2) be implemented
in the case of teaching staff as a class, except in the case
of post of Professor which shall be filled up exclusively in
consideration of merit and that the reservation quota
against this category should be provided additionally in the
category of Readers, Lecturers etc. taken collectively.
The first respondent applied for the post of Reader in the
department of Hindi, and though he ranked first. the post
was given to another who was a member of the backward class.
’The respondent filed a writ petition sad High Court allowed
it.
Dismissing the appeal to this Court,
HELD : (1) Section 6(2) does not indicate the manner in
which the clarification of members of service under the
University has to be made for the purpose of applying the
rules mentioned therein, but, inasmuch as every statutory
power has to be exercised reasonably, the classification has
to be reasonable.
[533C]
(2) Though rule 14(c) does not specifically say that the
rule of rotation will be applied in the order in which
vacancies occur, by necessary implication, the rule is
intended to be so applied. That being the object of the
rule the rule must have been intended to operate with
reference to the dates on which the vacancies occur and not
with reference to some other events. Though the rules were
made by the Government in 1967, for the purpose of applying
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the rules to the Universiry the rotation could only be
applied to vacancies existing on the date when the Act came
into force and in the order in which the vacancies had
occurred. [533E-IH]
(3) The Syndicate of the University appointed a Standing
Committee to draw up the list of vacancies at the time when
the Act came into force and the list indicates that the
vacancy of a Reader in the department of Hindi was the first
to occur. [534A-B; 535A-B]
(4) The High Court was right in holding that the power to
apply the rules mutatis matandis does not include the power
of amending the substantial provisions in the rules. The
power of the University is confined to making only what are
necessary adaptations so as to make the rules, applicable to
those in the service of the University in place of the
government servants for whom they were promulgated. It
could include a power to ignore only such parts as may be
inapplicable or in conflict with the Act itself. The
Syndicate could not, in any case, alter the provisions of s.
6(2) of the Act itself which made it incumbent on the
University to apply the rotation rule as contemplated under
the rules to every service, class or category under the
University. If the post of Reader in the department of
Hindi was the first to arise in service under the University
an application of the rotation principle would compel the
first appointment to take place on the basis of an open
competition.That principle could certainly not be modified
by the University by taking shelter behind the words mutatis
mutandis. [535D-H]
527
(5) The resolution of 1972 is on the face of it partly
Invalid by attempting to place appointment to the post of a
Professor outside the reservation and rotation rules
altogether, and it is ambiguous irk its exact meaning. The
second part seems resigned to provide for other backward
classes a compensatory quota of reserved appointments in a
category other than of Professors in-lieu of the removal of
post of Professors from subjection to the rules, The second
part is apparently a consequence of the exclusion of the
professors from the operation of the rules, which is itself
not permissible, and not an adaptation for the purpose of
applying the rules to the University. The two parts are
inseparable and therefore the whole
resolution is invalid. [536F-537C]
(6) The appointee as well as the respondent are now both
holding posts of readers in the Hindi Department as the
needs of the University have expanded; but it is necessary
to determine the order of their appointments after the
University has laid down its own method of reasonable
classification either of the whole teaching staff of the
University collectively or by putting various categories of
the teaching stat into separate compartments for the
applications of the rules. The University may treat all the
teaching posts as belonging to one class for the application
of the rules. On the other hand, it may treat only post of
readers in all subjects or in a particular subject as a
category by itself for the application of the rules. But it
cannot exempt any class or category such as professor from
the operation of the rules altogether. It is desirable that
the University should be left to make its own reasonable
classification in accordance with these Principles and to
determine which of the two readers was entitled to be
appointed earlier. [537C-F]
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JUDGMENT:
CIVIL APPELLATE, JURISDICTION : Civil Appeal No. 885 of
1974.
Appeal by Special Leave from the Judgment & Order dated the
29th November, 1973 of the Kerala High Court in 0. P. No.
102 of 1973.
A. K. Sen.. M. R handran and A. S. Nwnbiar, for the Appel-
lant.
T. S. Krishnamurthi Iyer and N. Sudkakaran, for Respondent
No. 1.
The Judgment of the Court was delivered by
BEG, J. The University of Cochin was granted special leave
to appeal to this Court against the judgment and order of
the Kerala High Court allowing a writ Petition of the
respondent Dr. N. Raman Nair who bad applied unsuccessfully
on 15-10-1972 for the Post of Reader in the Department of
Hindi after coming into force of the Cochin University Act
30 of 1971 (hereinafter referred to as ’the Act’). no High
Court had quashed a resolution; passed by the Syndicate on
6-1-1973, for appointing Dr. A. Ramchandra Dey to the Post.
The High Court had also quashed the resolution of the
Syndicate of the University passed on 17-7-1972, the
relevant part of which runs as follows :
"Resolved that
1. the rules mentioned under section 6(2)
of the Cochin University Act, 1971, be
implemented in the case of teaching staff, as
a class except in the case of post of
Professor which shall be filled up exclusively
in consideration of merit: but the reservation
quota against this category should be provided
additionally in the category of readers,
Lecturers, Teaching Assistant, etc. taken
collectively".
L319Sup. CI/75
528
It had directed the University to make appointments in
conformity with Section 6(2) of the Act. Section 6 lays
down:
6. "University open to All Classes and
Creeds:-
(1) No person shall, on grounds only of
religion, race, caste, sex, descent, place of
birth, residence, language, political opinion
or any of them, be ineligible for, or
discriminated against in respect of any
employment or office under the University or
membership of any of the authorities or bodies
of the University or admission to any degree
or course of study in the University.
(2) In making appointments to posts in any
service, class or category under the
University, the University shall mutatis
mutandis, observe the provisions of clauses
(a), (b) (c) of rule 14 and the provisions of
rules 15, 16 and 17 of the Kerala State and
Subordinate Service Rules as demanded from
time to time".
Section 6 of the Act, read as a whole, indicates that it was
meant to eliminate unjustifiable discrimination. The
provisions of Section 6 (1) are directed against
discrimination against particular individuals on any of the
grounds given there. Section 6(2) is meant to ensure
equality of treatment between citizens as members of groups,
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and, in particular, to enable "backward" classes to secure
appointments so as to remove the gap between the "advanced"
and the "backward". In doing so, it may appear that the
principle of equality of opportunity on the basis of
individual merit is being modified. Even if that be the
result, the wider object is to promote equality between
groups of ,citizens.
Rule 14, mentioned in Section 6(2) lays down a rule of
rotation in making appointments. Rule indicates that the
principle of minimum qualifications to determine whether
candidates are suitable for selection is not abandoned.
Rule 16 provides for a "sub-rotation" among sub-groups of
major backward classes. This concept is further explained
and elaborated in Rule 17. These rules are set out below in
toto.
" 14. Reservation of appointments.-Where the
Special Rules lay down that the principle of
reservation of appointments shall apply to any
service, class or cat,--gory, or where in the
case of any service, class or category for
which no special Rules have been issued, the
Government have by notification in the Gazette
declared that the principle of reservation of
appointments shall apply to such service,
class or category, appointments by direct
recruitment to such service class or category
shall be made on the following
vice basis
(a) The unit of appointment for the purpose
of this rule shall be 20, of which two shall
be reserved for scheduled castes and scheduled
tribes and 8 shall be reserved for the
529
other Backward classes and the remaining 10
shall be filled on the basis of merit.
Provided that one out of every five posts
reserved for Scheduled Castes and Scheduled
Tribes shall go to a scheduled Tribe candidate
only in the absence of a Scheduled Tribe
Candidate, it shall go to a Scheduled Caste
candidate.
(b) The claims of members of Scheduled
Castes and Scheduled Tribes and Other Backward
Classes shall also be considered for the
appointments which shall be filled on the
basis of merit and where a candidate belonging
to a Scheduled Caste, Scheduled Tribe or Other
Backward Class is selected on the basis of
merit, the number of posts reserved for
scheduled castes, scheduled tribes or for
Other Backward Classes as they case may be,
shall not in any way be affected.
(c) Appointments under this rule shall be made
in the
order of rotation specified below in every of
20 vacancies.
1 . Open Competition.
2. Other Backward Classes.
3. Open Competition.
4. Scheduled Castes and Scheduled Tribes.
5. Open Competition.
6. Other Backward Classes.
7. Open Competition.
8. Other Backward Classes.
9. Open Competition.
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10. Other Backward Classes
11. Open Competition.
12. Scheduled Castes and Scheduled Tribes.
13. Open Competition.
14. Other Backward Classes.
15. Open Competition.
16. Other Backward Classes.
17. Open Competition.
18. Other Backward Classes.
19. Open Competition.
20. Other Backward Classes.
Provided that the fourth turn in the third
rotation and the twelfth turn in the fifth
rotation shall go to Scheduled Tribe
candidates and in the absence of scheduled
tribe candidates, they shall go to Scheduled
Castes candidates.
530
Provided that the rule shall not apply in
appointments of near relatives of military
personnel killed, permanently disabled or
reported to be missing in action if they are
or have been wholly dependent on such
personnel and- they shall be given preference,
in the matter of appointment to Government
Service provided, they possess the prescribed
qualifications and subject to the condition
that preference in the matter of appointment
shall be given only to one relation in the
case of each such personnel.
Explanation :-The term "Near Relatives" means
the widows/wives, sons, daughters, sisters,
brothers, fathers, mother; nieces and nephews
of the military personnel.
15. If there is no suitable candidate for
selection from a particular community
classified as "Other Backward Classes" or from
the group of communities classified as
"Scheduled Castes and Scheduled Tribes" in the
turn allotted for them in the integrated cycle
combining the rotation in clause (c) of rule
14 and the sub-rotation in sub-rule (2) of
rule 17, the said community or group shall be
passed over and the post shall be filled up in
the following manner:-
If a suitable candidate is available for
selection in the, community or group
immediately next to the passed over community
or group in said cycle, he shall be selected.
If no such candidate is available in that
community or group selection shall be made
from the community or group in the said cycle,
he shall be selected. If no such candidate is
available in that community or group,
selection shall be made from the community or
group next following, strictly in the order of
rotation. If no suitable candidate is
available for selection in any of the said
communities or groups, selection shall be made
from among the open competition candidates.
The benefit of the turn thus forfeited to a
community, or group by reason of it being
passed over shall be resorted to it, at the
earliest possible opportunity, if a suitable
candidate from that community or group is
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available for selection by making adjustment
against the claims of the community or group
that derived the extra benefit by reason of
such passing over;
Provided that in no year reservations
including carrying forward vacancies to a
category of post shall exceed 50% of the total
number of vacancies for which selection by
direct recruitment to that category is
resorted to in that year :
Provided further that the right of restoration
of the turn shall lapse with the expiry of
three years from the date of the passing over;
Provided also that the said right of.
restoration shall not extend to a case where
the selection has gone, to an open Competition
candidate.
531
Note:- The year of reservation referred to
above shall be from the 15th June of a
calendar year to 14th June of the succeeding
calendar year. The rotation referred to above
shall commence from 15,-6-1967 and the
outstanding compensation due to communities in
the cycle of rotation upto 15-6-1967 will be
treated as lapsed.
16. There shall be subrotation among major
groups of Other Backward Classes.
17(1). The grouping of Other Backward Classes
for the above purpose shall be as indicated
below
1. Ezhavas and Thiyyas.
2. Muslims.
3. Latin Catholics S.I.U.C. and Anglo-
Indians.
4. Scheduled Caste converts to
Christianity,
5. Other Backward Classes put together i.e.
Communities other than those mentioned in
items 1 to 4 above included in the list of
"Other Backward Classes".
(2) The 40% reservation allowed to Other
Backward Classes shall be distributed among
the different groups of Backward Classes in
the following proportion:-
Out of every 40 appointments 14 shall be given
to Ezhavas and Thiyyas, 10 to Muslims, 5 to
latin Catholics, S.I.U.C. and Anglo-Indians, I
to Scheduled Caste converts to Christianity
and 10 to Other Backward Classes put together.
Note :-The year of reservation referred to
above shall
The following shall be the rotation by which
posts reserved for Other Backward Classes will
be distributed among the various groups coming
under the class:-
1. Ezhavas and Thiyyas,
2. Muslims.
3. Latin Catholics, S.I.U.C. and Anglo-
Indians.
4. Other Backward Classes.
5. Ezhavas and Thiyyas.
6. Muslims.
7. Ezhavas and Thiyyas.
8. Other Backward Classes.
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9. Latin Catholics, S.I.U.C. and Anglo-
Indians.
10. Muslims.
11. Ezhavas and Thiyyas.
12. Other Backward Classes.
13. Ezhavas and Thiyyas.
14. Muslims.
15. Latin Catholics, S.I.U.C. and Anglo-
Indians.
532
16. Other Backward Classes.
17. Ezhavas and Thiyyas.
18. Muslims.
19. Scheduled Caste converts to
Christianity.
20. Other Backward Classes.
21. Ezhavas and Thiyyas.
22. Muslims.
23. Ezhavas and Thiyyas.
24. Other Backward Classes.
25. Ezhavas and Thiyyas.
26. Muslims.
27. Latin Catholics, S.I.U.C. and Anglo-
Indians.
28. Other Backward Classes.
29. Ezhavas and Thiyyas.
30. Muslims.
31. Ezhavas and Thiyyas.
32. Other Backward Classes.
33. Ezhavas and Thiyyas.
34. Muslims.
35. Ezhavas and Thiyyas.
36. Other Backward Classes.
37. Latin Catholics, S.I.U.C. and Anglo-
Indians.
38. Muslims.
39. Ezhavas and Thiyyas.
40. Other Backward Classes.
Explanation .-.-The expression "Other Backward
Classes" referred to in items 4, 8, 12, 16,
20, 24, 28, 32, 36 and 40 shall mean Backward
Classes referred to in item 5 under sub-rule
(1) of this rule".
It is not disputed that the petitioner-respondent No. 1 Dr.
Nair, stood 1st in the order of merit as determined by the
Board, of Appointments for the posts of a Reader in the
Department of Hindi in the University. The petitioner-
respondent’s case was that the post of Reader in Hindi is in
itself a particular category. He also said :
"If the principle for reservation of
appointments provided in Rules 14 to 17 of the
General Rules is applied to the post of Reader
in Hindi, the petitioner alone is entitled to
get it since he secured the 1st rank in the
selection and since the first post is reserved
for open competition (on merits as provided in
Sub Rule (c) of Rule 14)".
533
The petitioner submitted that the principle of reservation
had been wrongly interpreted by the University in its
resolution of 17-7-1972 (Ex. P. 2) when it laid down that
principles of reservation for appointment should be Applied
to posts in a service, or class or category collectively and
not separately. The whole case, therefore, hinged round an
interpretation of Rules 14 to 17 and their impact on the
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principle of rotation as applied to "service, class or
category under the University".
Section 6(2) laws down the mandatory duty upon the
University to observe clauses (a), (b) and (c) of Rule 14,
as well as Rules 15, 16 and 17 of the rales set out above.
But, it does not indicate the, manner in which the
classification of members of a service under the University
has to be made for the purposes of applying these rules..
Inasmuch as every statutory power has to be exercised
reasonably, we can say that the classification has to be
reasonable. Thus the University may treat all the teaching
posts as belonging to one class for the application of the
rules. On the other hand, it may treat only posts, of
Readers in all subjects or in a particular subject as a
category by itself for the application of these rules. It
cannot exempt any class or category, such as Professors,
from the operation of the rules altogether. Only if it so
classifies all posts in a service under the University as to
make its classification prima facie unreasonable, could the
validity of the classification made by it be assailed. The
power is presumed to be exercised reasonably on the strength
of facts and circumstances relevant for purposes intended to
be achieved by the classification. These purposes have also
to pass the test of legality and constitutionality.
Clause (c) of Rule 14 lays down a scheme of rotation for
every block of 20 vacancies. But, it does not specifically
say that the rule of rotation will be applied in the order
in which vacancies occur. We however, think that, by
necessary implication, the rule is intended to be applied to
vacancies in the order in which they occur. It could not be
meant to be applied with reference to the date on which a
vacancy is announced or advertised because these are
fortuitous matters over which those in power in the
University may, if so inclined, be able to exercise control.
The whole object of such rules is to introduce fixity of
principle and of the method of its application so as to
remove, so far as possible, uncertainty and opportunities
for abuse of power. That being the object of such a rule,
it seems obvious to us that the, rule must have been
intended to operate with reference to the dates on which the
vacancies occur and not with reference to some other events
such as the dates of declaration or advertisement of the
vacancies.
The rules were made by the Govt. in 1967. Hence, the note
occurs at the bottom of Rule 15 that the rotation provided
for will commence from 15-6-1967. This could not obviously
be done, under the Cochin University Act 30, of 1971, which
was published in the State Gazette on 13-8-1971. Therefore,
for the purposes of applying these rules to the University,
the rotation could only apply to vacancies existing on the
date when the Act came into force and in the order in which
they had occurred.
534
It appears that the Syndicate of the University appointed a
Standing Committee to draw up a list of the vacancies, in
the class of posts with which we are concerned, at the time
when the Act came into force, under which the appointments
were to be made in accordance with the rotation rules. This
list (Ex. p. 3) drawn up at a meeting of the Standing
Committee of the Syndicate held on 1-1-1973 giving the
number and designations of vacant posts, dates of vacancies,
and allocation for the purposes of the rotation rule and the
names of the candidates appointed, runs as follows :-
"Regarding the appointments made so far and the appointments
to be made from among those who have been selected after
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advertisement and interview, the Committee examined the
details of allocations. The following is the result of the
review
No. Name of post Date of Allocation Nameof Carried
occurrence candidate over
of vacancy
APPOINTMENT MADE ON 17-7-1972
1. Lecturer, SMS.10-7-1971 OpenMrs. Armies George.
2. Lecturer, SMS.9-12-1971 ResDr. K. C. Sankarana
Ezhava.Narayanan.
3. Professor in Hindi17-7-1972 OpenDr. N. E. Viswanatha
lyer.
APPOINTMENT MADE ON 6-11-1972
4. Professor in SMS. 10-7-1971 Res. Sch.Dr. N.
Paramaswaran C&T Nair Sch. C&T.,converted as open.
5. Professor in SMS. 16-8-1972 OpenSri N.
Renganatha
Reddiar
Not joined.
6. Reader in SMS. 16-8-1972 Muslim.Dr. K. N. Nair, Res.
Muslim.
7. Lecturer in S MS. 16-8-1972 Open
Dr. Jose Thomas
converted PayyapallySch. C &T
as Sch. C&T. C/o. is lostand it is
filled open.
8. Lecturer in SMS. 16-8-1972 Res. (L.C.)Dr. C. N.
Pursushotha-
N.A. man Nair, L. C. Not
joined No. Clo. as it is
filled by open.
9. Lecturer in SMS. 16-8-1972 Open
Sri Alex. P. Lukose.
POST TO BE FILLED ON 6-1-1973
10. Reader in Hindi 10-7-1971 Res. O.B.C.This vacancy has
occurred earlier.
11. Research Asstt. in Law 10-7-1972 Open.
12. Lecturer in Physics 3-5-1972 Res. Sch. C&T.
13. Lecturer in Physics 10-12-1972 Open.
535
The above mentioned document was signed by the Pro Vice
Chanceilor of the University. It indicates that the vacancy
of a Reader in the Department of Hindi was the first to
occur. But, instead of allocating it to the open
competition class, for the purpose of applying the rotation
rule, it was allocated to the reserved block of posts. This
was also an illegality complained of by the respondent Dr.
Nair.
The stand of the University was that it had followed the
rotation rule according to which appointments were to be
made alternately by a general or open competition and by
choice restricted to backward groups. Dr. A.
Ramchandra,Dev, however, took up the position that the
University could even alter the rules, inasmuch as it had
the power to apply them "mutatis-mutandis", according to
situations as they C arose. it appears that, at the time
of arguments in the High Court, the University adopted the
stand of Dr. A. Ramchandra Dev on this question. It seems
to have been contended in the High Court on behalf of the
University that it was empowered to make the changes in the
rules to meet the particular needs of the University so as
to enable it to implement the provisions of Section 6(2) of
the Act in the way it thought fit.
We think that the High Court was right in holding that the
power to apply the rules "mutatis-mutandis" does not include
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the power of amending the substantial provision in the
rules. The High Court held : "Formal and
inconsequential changes for dovetailing the rules into
the frame work of the Act, alone seem to be contemplated".
We think that the High Court was right in confining the
power of the University to making only what are necessary
"adaptations" so as to make the rules applicable to those in
the service of the University in place of the
Government servants for whom they were promulgated. It could
include a power to ignore only such parts as may be
inapplicable or in conflict with Act itself. An instance of
this would be, as pointed out above, commencement of the
application of the rules after the Act came into force
instead of in 1967 when, according to a note in Rule
15, the Rules had to be enforced. The High Court rightly
held that the Syndicate could not, in any case, alter the
provisions of Section 6(2) of the Act itself which
made it incumbent on the University to apply the rotation
rule, as contemplated under the rules, to every "service,
class or category under the University". It held that "if
section 6(2) were to operate on its own terms, selection, to
the post of Reader, for the first time made by the
University, should, in the G first turn, go to the
candidate adjudged best on open competition, and only on the
next turn or turns to candidates on the principle of
communal rotation".
If the post of Reader in the Department of Hindi was the 1st
to arise in service under the University, as appears to be
the position from Ex. P. 3, an application of the rotation
principle would compel the first appointment to take place
on the basis of an open, competition. That principle could
certainly not be modified by the University by taking
shelter behind the words "Mutatis-mutandis". It has been
stated by the learned Counsel for the University that the
validity of
536
the impugned resolution may be doubtful so far as the
withdrawal of the post of Professor from the application of
the above mentioned rules is concerned, but, learned Counsel
submitted, we need not decide that question as we are not
concerned here with An appointment to the post of a
Professor. If, however, the Professors and Lecturers and
Readers were all to fall in one class it may become
necessary to consider this question also. Moreover, we
indicated below the two parts of the resolution do not seem
to be separable. It is true that Section 6, sub. s. (2)
lodges in the University a power to determine what should
constitute class or category of service under the Uni-
versity. No rigid formula to fit all circumstances can be
laid down and the authority concerned must be left to
define, subject to constitutional limitations, what should
be a class or category. But, this power would not, in our
opinion, enable the University to dispense with the
application of the rotation principle itself to any
particular class or category of service under the University
as appears to have been the real object of the resolution of
17-7-1972 with regard to Professors.
The word ’service’ does seem to us to denote, as the High
Court held, various classes or categories of posts within
it. It is obviously the widest class. A classification
which puts the whole teaching staff in one class for
purposes of applying the rule would seem unassailable. But,
one which puts all classes and categories of service from
the peons to Professors together may, by destroying the
distinction between classes and categories of service, seem
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to run counter to the words used in Section 6(2). As that
question is not before us, we refrain from deciding it.
This provision appears to us to be intended to ensure that,
whatever may be the kind of post to be held by a person in a
service "under the University", principles laid down in
Rules 14, 15, 16 and 17 must apply in making appointments to
it. We are not called upon to decide here what is meant by
a service "under the University" as it is admitted by both
sides that this description applies to the post of a Reader.
Nor have we to determine here the reasonableness of a
classification which may put the teaching and non-teaching
staff in one class or category.
It was submitted by learned Counsel for the University,that
the resolution of 17-7-1972 was intended to do no more than
to categorise "Readers, Lecturers and Teaching Assistants,"
by putting them into a single class or category, for
applying the rules to them "collectively". If that is all
it was meant to do, apart from attempting to place posts of
Professors outside rules 14 to 17, the intention is ex-
pressed in very unsatisfactory and misleading language. It
is of course, open to the University to pass a resolution
which does not contravene Section 6(2) of the Act. A
resolution which nerely classifies or categorises posts in a
reasonable manner would not offend against statutory
provisions.- The resolution of 17-7-1972 is, however,
atleast partly invalid, on the face of it, by attempting to
place H appointments to the post of a Professor outside the
reservation and rotation rules, altogether, and it is partly
atleast ambiguous so that it is difficult to decipher its
exact meaning. The second part seems
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designed, in so far as one may guess its meaning, to
provide for Other Backward Classes" a compensatory quota of
reserved appointments in a category other than that of
Professors in lieu of the, removal of posts of Professors
from subjection to the rules. If this is the real object,
as it seems to be, di.; intention was to alter the scope or
ambit of the rotation rule. The second part is apparently a
consequence of the exclusion of the Professors from the
operation of the ruleswhich it itself not permissible-and
not an adaptation for the purposes. of applying the rules to
the University. Thus, the two parts seem to be inseparable.
We, therefore, consider the resolution to be wholly
invalid.- The validity of Section 6(2) has not been
questioned either in the High Court or here.
We have been informed at the Bar that both the 1st and the
3rd Responcients, that is to say, Dr. Nair and Dr.
Ramrhandra Dev, are at present holding posts of Readers in
the Hindi department as the needs of the University have
expanded. It may however, be necessary to determine the
order of their appointments after the University his laid
down its own method of reasonable classification either of
the whole teaching staff of the University collectively or
by putting various categories of the teaching staff into
separate compartments for the application of the rules. We
have held that the University has, this power provided it is
exercised on good and reasonable grounds. We have only
indicated that, on such facts as have come to our notice,
the particular vacancy for which both Dr. Raman Nair and Dr.
Ramchandra Dev were competing seemed to us to be the first
to arise for the purposes of applying Section 6(2) of the
Act. As thiis matter was not fully investigated, and, the
power is vested in the University to make its own
classification within the limits indicated by us. we think
that it is desirable that the University should be left to
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make its own reasonable classification in accordance with
the principles laid down above by us so as to determine
which of the two Readers was entitled to be appointed
earlier. In other words, the Syndicate of the University
will have to pass a fresh resolution which is in accordance
with the law as explained by us and then to apply the rules
in conformity with such a resolution in exercise of the
powers possessed by the University.
The result is that we dismiss this appeal subject to the
elucidation given by us of the manner in which the
directions issued by the High Court to the University to act
in accordance with Section 6(2) of theAct are to be carried
out by the University. We make no order as to costs.
V.P.S.
Appeal dismissed.
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