Rajasthan High Court - Jodhpur
Rajendra Kumar Nagda vs State Of Rajasthan & Ors on 1 June, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S. B. Civil Writ Petition No. 2872 / 2017
Rajendra Kumar Nagda S/o Shri Shyamlal Nagda, aged about 47
years, R/o 16 Bahu Bali Colony, Dhulkot, Ganesh Nagar, Udaipur.
at Present Dean, College of Veterinary and Animal Sciences,
Naania, Vallabh Nagar, District Udaipur, Unit of Rajasthan
University of Veterinary and Animal Sciences, Bikaner.
----Petitioner
Versus
1. The State of Rajasthan through Principal Secretary,
Department of Animal Husbandry, Government of Rajasthan,
Secretariat, Jaipur.
2. The Rajasthan University of Veterinary and Animal Sciences,
Bikaner through its Registrar.
3. The Chancellor, Rajasthan University of Veterinary and Animal
Science, Bikaner.
4. The Convenor, Search Committee for Appointment of Vice
Chancellor of Rajasthan University of Veterinary and Animal
Sciences at U.P. Deendayal Upadhyay Pashu Chikitsa Vighyan
Vishvavidhyalaya Evan Go Anusandhan Sansthan, Mathura
281001 (U.P.).
Reportable ----Respondents
_____________________________________________________
For Petitioner : Mr. G.R. Punia, Senior Counsel assisted by
Mr. Yashpal Khileree
For Respondents : Mr. N.M. Lodha, Advocate General and
Mr. K.L. Thakur, Additional Advocate General
assisted by Mr. V.D. Dadhich,
Mr. Harish Purohit & Mr. Muktesh
Maheshwari
_____________________________________________________
HON'BLE MS. JUSTICE NIRMALJIT KAUR
Order June 1st, 2017 The petitioner is Dean in the Rajasthan University of Veterinary and Animal Sciences, Bikaner. He applied for the post of Vice Chancellor in the said University in pursuance to the (2 of 14) [CW-2872/2017] advertisement dated 06.02.2017. As per the Condition No. 2 of the said advertisement, one of the eligibility conditions is that a candidate should possess the requisite veterinary qualification as prescribed in the Indian Veterinary Council Act, 1984 for the post of Vice-Chancellor. The petitioner being aggrieved with the said condition has filed the present writ petition with the following prayers :-
"(a) Quash the constitution of Search Committee for appointment to the post of Vice Chancellor, Rajasthan University of Veterinary and Animal Sciences, Bikaner being contrary to the provisions of Section 24 of the Act of 2010;
(b) modify the condition No. 2 prescribed in advertisement (Annx.1) so as to be in consonance with the provisions of sub-section (4) of Section 49 of the Act of 2010 thereby providing relaxation to the inservice candidates and the petitioner in particular;
(c) the nomination of Convener be declared illegal and contrary to the provisions of Section 24 of the Act of 2010; and"
While praying for the relief claimed in prayer (a), it was contended that the constitution of the Search Committee itself is in conflict as the English version of sub-section (2) of Section 24 of the Rajasthan University of Veterinary and Animal Sciences Act, 2010 (hereinafter 'the Act of 2010') provides that one member (out of four) shall be nominated by the Veterinary Council of India, whereas, the Hindi version of sub-section (2) of Section 24 of the Act of 2010 provides that ",d O;fDr fo|k ifj"kn }kjk funsZf'kr fd;k tk;sxkA" Thus, as per English Version, one of the members has to be nominated by the Veterinary Council of India and as per the (3 of 14) [CW-2872/2017] Hindi Version, one of the members has to be nominated by the Academic Council. Therefore, both English and Hindi versions are different and till both versions are corrected in consonance with each other, the Search Committee for selection to the post of Vice Chancellor cannot be permitted.
With respect to the Prayer (c), learned counsel for the petitioner submitted that nomination of the Convener of the Search Committee is per se, illegal and dehors the provisions contained in the Act of 2010 because the controversy to Section 24 of the Act of 2010 provides that person nominated shall not be a member of any of the authorities of the Universities but the person so indicated in the advertisement nominated as Convener of the Search Committee is none else than a retired Professor and Faculty Member and was also the member of the Board. He is presently a pensioner of the respondent - University, therefore, he cannot be said to be a person not having any personal interest in the University. His nomination is contrary to Section 24 of the Act of 2010.
While praying for modification of Condition No. 2 of the advertisement, it was vehemently argued that the respondent- University has committed illegality in providing minimum eligibility criteria i.e. one should have recognized veterinary qualification as described in the Indian Veterinary Council Act, 1984 for appointment to the post of Vice-Chancellor as the same is contrary to sub-section (4) of Section 49 of the Act of 2010.
Reply has been filed on behalf of the respondent Nos. 1 and 4 being the State and the Search Committee, respectively.
(4 of 14) [CW-2872/2017] Mr. N.M. Lodha, learned Advocate General appearing for the State, at the outset, sought permission to raise the preliminary objection. By way of preliminary objection, it was submitted that as per Section 24(3)(a), a candidate for the post of Vice Chancellor must have recognized veterinary qualification as defined in the Indian Veterinary Council Act, 1984 i.e. Bachelor of Veterinary Science and Animal Husbandry. The petitioner does not have the said qualification. Hence, the petitioner has no locus standi to file the present writ petition as he does not have the requisite qualification for the post of Vice Chancellor. It was further contended that the petitioner has challenged the nomination of Dr. K.M.L. Pathak as Convenor. In such circumstances, he should have been made him a party by name but this has not been done. The writ petition, therefore, suffers from non-joinder of necessary parties. He was named as Convenor vide Order dated 25.01.2017. The advertisement for notification for appointment on the post of Vice Chancellor was published on the website on 06.02.2017. The petitioner has filed the so-called representation by email on 02.03.2017 (at 6.25 P.M.) meaning thereby that, it was sent after office hours. The petitioner gave no time to consider his representation and has immediately filed the present writ petition on 04.03.2017. Dr. Pathak was appointed as Member of the Board of Management and his appointment came to an end on 31.12.2015. At present, he is a retired Professor of the University and is getting pension and hence, he cannot be termed as member of any of the authorities of the Universities. As per Section 10 of the Act of (5 of 14) [CW-2872/2017] 2010, the authorities of the University have been prescribed in the Act itself. The petitioner is not presently holding any of the positions and hence, having retired cannot be said to be a member of the authorities of the University. The ground taken by the petitioner to show bias on behalf of Dr. Pathak that his hard copy of the email was not accepted is only an apprehension in the mind of the petitioner as the application sent by the petitioner through email was duly entertained. Moreover, the hard copy of the email was sent by the petitioner after expiry of the last date and was, hence, refused.
With respect to the constitution of the Search Committee being in conflict in view of the English and Hindi versions of the Act of 2010, it was submitted that the same shall have no effect in view of the provisions contained in Article 348 of the Constitution of India vide which the English version of the Act will prevail and in the present case, the nomination has been done as per the English version i.e. by the Veterinary Council. This issue was also considered by the Division Bench of this Court in the case of Bhikam Chand and others Vs. The State and others reported in A.I.R. 1966 Rajasthan 142 wherein it was held that English version alone has to be considered as authorized version.
Learned counsel for the parties were heard at length. First and foremost, this Court shall proceed to decide the preliminary objection having been seriously raised and contested. As per submission of the respondent-State, the petitioner had no locus standi to file the writ petition as he does not have the requisite qualification for the post of Vice-Chancellor. Section 24 (6 of 14) [CW-2872/2017] of the Act of 2010 lays down the qualification for the post of Vice- Chancellor. Sub-section (3) of Section 24 of the Act of 2010 reads :-
"24. Vice-Chancellor.-
(1) .... .... ......
(2) ..... .... .....
(3) A person who has attained academic excellence and demonstrated leadership qualities in veterinary and animal sciences education and has the following minimum qualifications shall be eligible for the post of Vice-Chancellor:-
(a) a recognized veterinary qualification as defined in the Indian Veterinary Council Act, 1984 (Central Act No.52 of 1984);
(b) minimum six years of experience on the post of Professor or equivalent in any teaching or research or extension system of veterinary and animal sciences of any University or research centre etc. of the Country, out of which at least three years of experience should be as Chairperson or Dean of faculty of any University or Dean or Principal of any college in the Country."
A perusal of the sub-section (3)(a) requires a recognized veterinary qualification as defined in the Indian Veterinary Council Act, 1984. The definition of "Veterinary Council of India" has been provided in Section 2(zl) of the Act of 2010, which is as under :-
"2(zl). Veterinary Council of India means the Veterinary Council of India constituted under the Indian Veterinary Council Act, 1984 (Central Act No.52 of the University)."
Further, Section 2(e) of the Act of 1984 makes it clear that recognized veterinary qualification means any of the veterinary qualification included in the first schedule or the second schedule (7 of 14) [CW-2872/2017] of the Act and in the first schedule of the Act (at entry No.75), the qualification has been prescribed as under:-
75 Rajasthan Bachelor of B.V.Sc. & A.H. University of Veterinary (This Veterinary & Science and qualification Animal Animal shall be a Sciences, Husbandry recognized Bikaner in veterinary respect of qualification as aforesaid only College of when granted Veterinary and on or before Animal the 13th May, Sciences, 2010.
Bikaner It is clear from the above that a candidate for the post of Vice Chancellor must possess the degree of B.V.Sc. & A.H. The petitioner admittedly does not have the requisite qualification. The condition No.2 is in consonance with the Section 24(3)(a) of the Act above and therefore, knowing that he was not qualified, one of the prayers of the petitioner is that condition No.2 prescribed in the advertisement should be modified.
Mr. G.R. Punia, learned Senior Counsel assisted by Mr. Yashpal Khileree appearing for the petitioner, however, submitted that he was fully qualified in view of the relaxation granted under Section 49 of the Act of 2010 which was incorporated to save and look after the welfare of the teachers and employees of the Maharana Pratap University of Agriculture and Technology, Udaipur and Swami Keshvanand University of Agriculture, Bikaner. The respondent University was created by merging the colleges, institutions and units relating to the Veterinary and Animal (8 of 14) [CW-2872/2017] Sciences of both the Universities. Hence, their rights were protected under sub-section (4) of Section 49 of the Act of 2010. It was argued that by virtue of Section 49, a person employed as a teacher or employee under the Maharana Pratap University of Agriculture and Technology, Udaipur would deem to have become the teacher or as the case may be the employee of the University and the benefits and service conditions prevailing in the predecessor university were deemed to be available in the respondent-University and the respondent-University had accordingly extended the benefit of sub-section (4) of Section 49 of the Act of 2010 to the inservice candidates for appointment to the post of Assistant Professor and Assistant Director by notifying advertisement for recruitment published on 26.02.2013 whereby the inservice candidate holding Degree of B.Sc (Agriculture) and M.Sc. (Agriculture) in Dairy Husbandry/Animal Husbandry and Animal Science/Animal Production, eligible for recruitment in the different disciplines of Veterinary and Animal Sciences. Further, the petitioner had obtained Degree of Veterinary (Hons) and is Master of Science (Agriculture) (Animal Husbandry) and has also obtained Degree of Doctor of Philosophy (Ph.D.) in Animal Production. He was appointed as Assistant Professor of Animal Production in the Rajasthan Agriculture University, Bikaner by order dated 12.11.1996. Thereafter, the petitioner was appointed on the post of Professor of Animal Production by direct recruitment in Maharana Pratap University of Agriculture and Technology, Udaipur and was posted at Live Stock Research Station, Vallabh Nagar. By the Rajasthan University of Veterinary and Animal (9 of 14) [CW-2872/2017] Sciences Act, 2010, the new University in the name of Rajasthan University of Veterinary and Animal Sciences was created by splitting the Maharana Pratap University of Agriculture and Technology, Udaipur and Swami Keshvanand University of Agriculture, Bikaner and thereby the Live Stock Research Station, Vallabh Nagar, Udaipur came under the jurisdiction of Rajasthan University of Veterinary and Animal Sciences, Bikaner. The Vice Chancellor of the respondent University gave the additional charge of Dean of College of Veterinary and Animal Sciences, Navania, Vallabh Nagar, Udaipur by order dated 22.05.2010. He was promoted on the post of Professor under the Career Advancement Scheme with effect from 16.06.2009. He was, therefore, an eminent educationist fit to be appointed as Vice Chancellor. By virtue of Section 49(4), he was entitled for the relaxation to the qualification laid down in Section 24(3)(a) of the Act of 2010 and also mentioned in condition No.2 of the advertisement. Besides, he also had the requisite experience. The qualification for appointment on the post of Assistant Professor even though was basic Veterinary qualification was relaxed for in service candidates with a degree of B.Sc. (Ag.) and this relaxation was given in view of Section 49(4) of the Act of 2010 which protects the teachers and employees of the Maharana Pratap University.
Thus, heavy reliance has been placed on sub-section (4) of Section 49 of the Act of 2010 to contend that the petitioner was qualified in view of the relaxation provided under Section 49(4). Accordingly, it would be necessary to reproduce the relevant provisions of Section 49, which are as under :-
(10 of 14) [CW-2872/2017] "49. Power to transfer of Colleges, institutions and units.-(1) Notwithstanding anything contained in any law for the time being in force, the colleges, institutions, hostels, offices, research stations, extension centres and any other body, agency or unit, as may be specified by notification in the Official Gazette may, at any time, be disaffiliated or, as the case may be, transferred by the Government from any other Universities in the State and affiliated or transferred to or vested in the University constituted under this Act on such terms and conditions as may be determined by the Government.
(2) & (3) ....... xx ........ xx ...........
(4) A person employed as a teacher or an employee in any college, institution, research station, extension centre or any other body, agency or unit referred to in sub-section (1) shall, from the date of notification issued under the said sub-section, be deemed to have become the teacher or, as the case may be, the employee of the University on the same terms and conditions."
A bare reading of Section 49(4) shows that the said protection is given to a teacher or an employee and does not refer to an officer, whereas, the Vice-Chancellor is termed as 'Officer'.
Section 23 of the Act of 2010 provides the list of officers of the university as under :-
"23. Officers of the University,- The University shall consist of the following officers, namely:-
(i) the Vice-Chancellor;
(ii) the Pro-vice-Chancellor;
(iii) the Registrar;
(iv) the Comptroller;
(v) the Deans:
(vi) the Director of Research:
(vii) the Director of Clinics;
(viii) the Director of Extension Education; and
(ix) such other directors as may be declared by the
(11 of 14)
[CW-2872/2017]
Statutes to be officers of the University."
Similarly, the definition of a teacher as per Section 2(zh) of the Act of 2010 does not include an officer. Section 2(zh) too clarifies the same and reads thus :-
"2(zh) "teacher" means a person, known by any rank, appointed or recognized by the University or affiliated college or institution or unit for the purpose of imparting instruction or conducting and guiding research or extension education programmes and includes any other person declared by the Statutes to be a teacher;"
The definition of an 'employee' in the Legal Glossary issued by the Government of India, Ministry of Law is "one who is employed by another, especially by a business concern or government ; one employed in a position below the executive level."
In short, a reading of Section 23 of the Act of 2010 wherein list to various officers of the University read with the definition of the teacher as given in Section 2(zh) of the Act of 2010 along with the definition of the employee in the Legal Glossary leaves no doubt in mind that a teacher, employee and an officer are three separate categories. Section 49(4) gives protection only to a teacher and an employee but no such relaxation is provided for an officer. The petitioner was entitled only to the protection under Section 24(3)(b) and not 24(3)(a) as Section 24(3)(b) refers to experience as teacher alone. Thus, the petitioner by virtue of Section 49(4) was able to get the relaxation for his appointment on the various posts and promotions given to him in the capacity of a teacher but cannot claim the same relaxation while seeking (12 of 14) [CW-2872/2017] appointment to the post of Vice-Chancellor.
Having held so, the Condition No. 2 in the advertisement dated 06.02.2017 against which the petitioner has applied for appointment on the post of Vice Chancellor is in consonance with Section 24(3)(a) of the Act of 2010. The petitioner has not challenged the provisions of Section 24(3)(a) of the Act of 2010. Hence, without amendment to Section 24(3)(a) of the Act, no writ can be issued for modification of the Condition No. 2 of the advertisement, which is akin with the provisions of the Act. No fault can be found with the action of the University in laying down the Condition No. 2, which is requisite qualification for the post of Vice Chancellor. Thus, the petitioner does not have the requisite qualification laid down under Section 24(3)(a) of the Act for the post of Vice-Chancellor. Being not qualified, the petitioner has no locus standi to challenge the constitution of the Search Committee or the appointment of the Convenor of the Search Committee constituted for the purpose of selection to the post of Vice- Chancellor.
The Apex Court in the case of Rameshwar Dass Mehla Vs. Om Prakash Saini & ors. reported in JT 2002 (2) SC 403 set aside the order of the High Court allowing the writ petitions in spite of holding the petitioners ineligible for the post by observing that once the High Court had come to a conclusion that the writ petitioners were not eligible, the other question of qualification of the appellants who were respondents in the writ petition should not have been gone into and held in Para 8 and 9 as under :-
(13 of 14) [CW-2872/2017] "8. Similarly, in the case of other respondent, it has been stated that the concerned respondent is not having 10 years' experience as a deputy librarian in a university or 15 years' experience as a college librarian and he is not having one year specialization in the area of information technology/archives and manuscript making and this fact found favour with the High Court. The High Court categorically stated that the petitioners in both the cases were not eligible for the post. That finding has been recorded on consideration of these aspects of the matter. If that is so, other questions need not have been examined in this case at all, though raised by either of the parties.
9. In that view of the matter, we allow these appeals, set aside the order made by the High Court and dismiss the writ petitions filed by the respondents. We direct the parties to bear their respective costs."
Similar view was adopted by the Apex Court in the case of Mohd. Shafi Pandow Vs. State of J & K and others reported in (2001) 10 Supreme Court Cases 447 as well as Utkal University etc. Vs. Dr. Nrusingha Charan Sarangi and others reported in A.I.R. 1999 Supreme Court 943.
In the case of Kumari Chitra Ghosh and another Vs. Union of India and others reported in A.I.R. 1970 Supreme Court 35, the Apex Court refused to go into the question that some of the nominations were illegal as some of the candidates who had been nominated had not applied in time by observing that it had already been held by the court that the appellants did not have any right to challenge the nominations made by the Central Government i.e. they had no locus standi in the matter of nomination to the seats. Para 13 of the judgment is relevant which reads thus :-
(14 of 14) [CW-2872/2017] "13. Finally, Mr. Misra attempted to agitate the question of some of the nominations being illegal as the candidates who had been nominated had not applied in time - the prescribed date being August 1, 1968. This contention cannot be entertained for two reasons. The first is that no such point appears to have been raised before the High Court when the writ petition was disposed of on December 3, 1968. It is only at the stage of review that this matter seems to have been pressed. Secondly, it has been held by us that the appellants had no right to challenge the nominations which had been made by the Central Government. It was not, therefore, open to them to assail any of the nominations which had been made."
Coming back to the case in hand, this Court has already held while dealing the preliminary objection that the petitioner does not have the requisite qualification for the post of Vice-Chancellor. The Condition No. 2 of the advertisement is in consonance with the Act. The petitioner has not challenged the provisions of the Act. Hence, no fault can be found with the Condition No. 2 of the advertisement, which cannot be modified till the requisite amendment is brought about in the Act. In these circumstances, applying the settled proposition of law as above, the petitioner being not qualified has no locus standi to challenge the constitution of the Search Committee and the nomination of the Convenor. Accordingly, this Court is not required to deal with the same at the behest of the petitioner.
Dismissed accordingly.
(NIRMALJIT KAUR), J.
Inder/JrPA