Allahabad High Court
Dr. Prabhu Narain Saxena vs Vice-Chancellor, Dr. Bheem Rao ... on 27 September, 2000
Equivalent citations: 2000(4)AWC3187, (2001)1UPLBEC86
Author: Krishna Kumar
Bench: Krishna Kumar
JUDGMENT Sudhir Narain, J.
1. The petitioner seeks writ of certiorari quashing the order dated 9.8.2000 passed by the Vice-Chancellor appointing Dr. Sunil Jain, respondent No. 4, as Professor in Zoology Department of Dr. Bheem Rao Ambedkar University. Agra (hereinafter referred to as the University) and further a writ of mandamus restraining the respondents from interfering with his functioning as Head of the Zoology Department.
2. The claim of the petitioner is based on the fact that he was appointed as Reader in the University on 21.9.1987. He was confirmed on the said post on 29.10.1988. One Dr. S. P. Jain challenged the selection of the petitioner by making representation to the Chancellor. His representation was allowed by the Chancellor on 28.11.1988 holding that the selection of the petitioner was not in accordance with law. The petitioner filed Writ Petition No. 23263 of 1988 challenging the said order. This Court granted interim stay order against the order of the Chancellor and he continued to function as Reader in Zoology Department, The petitioner was appointed as Head of the Zoology Department with effect from 30.6.1994 on the ground that he was the seniormost teacher in the Department.
3. The post of Professor was vacant in the Zoology Department of the University. The petitioner made a representation to the University that he may be considered for promotion to the post of Professor under the Personal Promotion Scheme. As the matter remained pending with the University, the petitioner filed Writ Petition No. 5005 of 2000. Prabhu Narain Saxena v. Vice-chancellor and others, seeking writ of mandamus directing the respondents to consider his claim for promotion as Professor under the Personal Promotion Scheme. The writ petition was disposed of by this Court on 31.1.2000 with the direction that the executive council to take appropriate action in the matter for considering the case of the petitioner for promotion as Professor preferably within six weeks from the date of production of certified copy of the order passed by the Court. The executive council, in its meeting held on 16.5.2000, passed a resolution that as the matter pertaining to his appointment as Reader is subjudice in this Court in Writ Petition No. 23263 of 1988. he could not be considered for promotion to the post of Professor, The petitioner again approached this Court against the said resolution by filing Writ Petition No. 14514 of 2000 which is still pending. In the meanwhile Writ Petition No. 23263 of 1988. filed by the petitioner, was allowed on 27.7.2000 and the order of the Chancellor dated 28.1 1.1988 was quashed on the finding that the selection of the petitioner as Reader in the University was in accordance with law. The executive council, after the decision of the writ petition on 27.7.2000, was to consider the claim of the petitioner for promotion under the Personal Promotion Scheme but in the meantime the Vice-Chancellor of the University, respondent No.1, passed an order on August 9, 2000. appointing respondent No. 4 for the post of Professor in the Zoology Department of the University on a contract basis for the period of one year or till the regular appointment is made, whichever is earlier. This order has been challenged by the petitioner in the present writ petition.
4. The core question is, whether the Vice-Chancellor has power to make ad hoc or short term appointment on the post of Professor in the Department of the University under the provisions of U. P. State Universities Act. 1973 (hereinafter referred to as 'the Act') or under any other law. The power of the Vice-chancellor has been enumerated under Section 13 of the Act. The relevant provisions in this respect are Section 13 (1) (a). Section 13 !6) and 13 (8) of the Act.
5. The power of appointment is conferred on the executive council or management of the affiliated or associated college under Section 31 of the Act. It does not confer any power on the Vice-Chancellor to make any appointment. There is no other provision under the Act or Statute which confers power on the Vice-Chancellor to make appointment to the post of teacher.
6. Dr. R. G. Padia. learned counsel for the respondent No. 4. submitted that the Vice-Chancellor in exercise of general supervision and control over the affairs of the University has power to make ad hoc appointment to the post of any teacher Including the post of Professor in the University. In this context, sub-section (6) of Section 13 is relevant which confers the power on the Vice-Chancellor to make appointment when the matter is of urgent nature requiring immediate action and the same could not be immediately dealt with by any officer or the authority or other body of the University empowered under the Act. It specifically excludes the power to appoint a teacher in the University.
The relevant provision of sub-section (6) of Section 13 reads as under :
"(6) Where any matter (other than the appointment of. teacher of University) is of urgent nature requiring immediate action and the same could not be immediately dealt with by any officer or the authority or other body of t.he University empowered by or under this Act to deal with it, the Vice-Chancellor may take such action as he may deem fit and shall forthwith report the action taken by him to the Chancellor and also to the officer, authority, or other body who or which in the ordinary course would have dealt with the matter :....."
7. It may be noted that subsection (6) of Section 13 of the Act. before its amendment by U. P. Act No. 1 of 1992, provided that when any matter is of urgent nature requiring immediate action and the same could not be immediately dealt with by any officer or authority or other body of the University empowered by or under the Act to deal with it, the Vice-Chancellor may take such action as he deems fit. Sub-section (8) of Section 13 provided that where the exercise of power by the Vice-Chancellor under sub-section (6) involves the appointment of an officer or a teacher of the University, such appointment shall terminate on appointment being made in the prescribed manner or on the expiration of period of six months from the date of the order of the Vice-Chancellor, whichever is earlier. Subsection (61 read with sub-section (8) of Section 13 of the Act prior to the amending Act of 1992 conferred power on the Vice-Chancellor to make ad hoc appointment of a teacher in case of an urgency but the Amending Act has taken away this power by excluding the power of Vice-chancellor to make appointment of a teacher. Sub-section (6) has added the words "other than appointment of teacher of the University" and similarly under sub-section (8) the words "or a teacher of the University"
has been deleted. The legislative Intent is clear that the Vice-Chancellor should not be given any power to make ad hoc appointment of a teacher of the University.
8. Secondly, in the facts and circumstances of the case, there was nothing to show that appointment to the post of Professor was extremely urgent. The power under Section 13 can be exercised by the Vice-Chancellor only when the matter is too urgent and requires immediate action. The question of promotion of the petitioner to the post of Professor was to be considered by the executive council and before the decision could be taken by the executive council the Vice-Chancellor has passed the order making appointment of respondent No. 4 to the post Of Professor in Zoology Department of the University. The Court has to examine objectively the condition precedent for the exercise of powers by an authority as held in V. S, Vishwavidyolaya v. Raj Kishore Tripathim, AIR 1977 SC 615.
9. . I is urged that the Vice-Chancellor can make appointment of a teacher in exercise of his power of supervision and control of the affairs of the University under clause (a) of sub-section (1) of Section 13 of the Act.
10. The general power which is Conferred under clause (a) of subsection (1) of Section 13 of the Act will not be attracted when there is a specific bar created under subsection (6) of Section 13 of the Act in respect of appointment of a teacher of the University by the Vice-Chancellor Secondly, clause (a) of sub-section (1) of Section 13 confers power on the Vice-Chancellor to exercise general supervision and control over the affairs of the University including the constituent colleges and the institutions maintained by the University and its affiliated and associated colleges. The power of supervision and control of the affairs of the University or any Institution does not confer the power to act itself for another authority who is empowered under the Act to make appointments. He can only supervise and control the affairs of the University, e.g. If any order is passed or any action is taken by a subordinate authority, he can pass a suitable order in respect of such action or orders.
11. The learned counsel for the respondent submitted that subsection (1) of Section 31 of the Act provides that executive council shall make appointment subject to the provisions of the Act and as the words are "subject to the provisions of this Act", it is contended that it should be read as "subject to Section 13 (1) (a)" which confers the power on the Vice-Chancellor to exercise general power of supervision and control over the affairs of the University and such power by virtue of the words used in sub-section (1), namely, "subject to the provisions of this Act" will invest the power in the Vice-Chancellor to make appointment. This submission cannot be accepted. The phrase "subject to the provisions of this Act" under subsection (1) of Section 31 must relate to such other provisions of the Act which relates to the appointment of a teacher in the University or in the Committee of Management of an affiliated or associated college.
12. Section 31 of the Act confers power on the executive council to make appointment of a teacher in the University. The executive council has a right to make appointment on substantive vacancy by a regular selection but it has also power to make officiating appointment in a vacancy caused by the grant of leave to an incumbent for a period not exceeding ten months without reference to the Selection Committee under Section 31 13) (a) of the Act. If there is permanent vacancy, there is no reason that the executive council should not take a decision for appointment to the post on the recommendation of the Selection Committee or if a person is entitled for promotion, not to take steps to fill up the vacancy by promotion. The executive council has been empowered to make appointment on a leave vacancy for a period up to ten months but if it exceeds ten months again it has to appoint a teacher after obtaining recommendation of the Selection Committee under Section 31 (3) (a) of the Act. It is clear that substantive appointment as well as officiating appointment has to be made by the executive council and not by any of the authority under the Act. Section 31. It appears to us, does not take into account a situation where the executive council can take a decision for filling up substantive post by making ad hoc appointment. The Legislative intent appears to be that if substantive vacancy is existing, the executive council should fill up the vacancy expeditiously in accordance with the provisions of the Act and not to make ad hoc appointment.
13. The learned counsel for the respondent urged that the petitioner has an alternative remedy to make representation to the Chancellor under Section 68 of the Act and therefore, the petitioner be directed to seek alternative remedy. The question as to when a petitioner should be directed to make representation to the Chancellor under Section 68 of the Act was considered in Dr. Smt. Kantesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur and others. AIR 1987 SC 2186. wherein their Lordships held that if the Vice-Chancellor passes an order without any power under law such order could be challenged before the High Court by a petition under Article 226 of the Constitution of India and the High Court would not be justified in dismissing the writ petition on the ground that an alternative remedy was available to the petitioner under Section 68 of the Act. In this case the Vice-Chancellor had disapproved the order of dismissal of the teacher from service but subsequently he reviewed the order and it was held that as he had no power to review the order. It was a nullity and the High Court could have entertained the writ petition under Article 226 of the Constitution and it should not have been dismissed on the ground that an alternative remedy was available to the petitioner under Section 68 of the U. P. State Universities Act.
14. In Pramod Pathak v. Vice-Chancellor, Banaras Hindu University, Varanasi and others, 1985 UPLBEC 634, it was held that though an aggrieved person can make representation to the visitor under Section 5(7) of Banaras Hindu University Act, 1915, but where the executive council has taken a decision, itself without jurisdiction, the the High Court can exercise jurisdiction under Article 226 of the Constitution of India. As discussed above, we have found that the Vice-Chancellor has no power to make any appointment under Section 13 of the State Universities Act. The petitioner can challenge that order in this petition and it cannot be rejected simply on the ground that the petitioner should approach the Chancellor under Section 68 of the Act.
15. The next contention of the learned counsel for the respondent is that the Vice-Chancellor had appointed the wife of the petitioner also in the Zoology Department as a Lecturer but the petitioner then did not challenge this order. It is settled law that there cannot be parity in illegality. In Secretary. Jaipur Development Authority, Jaipur v. Daulat Mal Jain etc., JT 1996 (8) SC 387, it was observed that Article 14 of the Constitution has no application or justification to legitimise an illegal and illegitimate action. If an appointment has been made by the Vice-Chancellor illegally at earlier time, he cannot be permitted to make such illegal order again and again.
16. Another contention of the respondent is that the petitioner has no right to challenge the order of appointment of respondent No. 4 as that does not affect his right to function as Reader in Zoology Department in the University. The grievance of the petitioner is that he is entitled for promotion to the post of Professor but without considering his case by the executive council, respondent No. 4 has been appointed as Professor by the Vice-Chancellor and that affects his rights. It is not denied that the petitioner had made representation to the executive council to consider his claim for promotion to the post of Professor, The executive council did not consider his case in regard to his promotion to the post of Professor on the ground that Writ Petition No. 23263 of 1988 filed by him was pending. The said writ petition has been decided on 27,7.2000. After the decision of the said writ petition, it was for the executive council to consider his claim for promotion to the post of Professor. The Vice-Chancellor has passed the order of appointment of respondent No. 4 as Professor on August 9. 2000. On the facts and circumstances, it cannot be urged that the petitioner is not affected by the appointment of respondent No. 4 on the post of Professor in Zoology Department.
17. The last contention of the learned counsel for the respondent is that a Division Bench of the High Court referred a question of law to be determined by a larger Bench in Civil Misc. Writ Petition No. 3116 of 1999 and in that order, an observation was made that pending further orders, the University can make ad hoc appointment on the post involved in that writ petition. Firstly, this order was passed in a matter of Allahabad University. The respondents were not parties in that writ petition. Secondly, the observation was made that the University can make ad hoc appointment but there was no observation that the Vice-chancellor can make ad hoc appointment. The observation made in that referring order has no relevance in the present case.
18. For the reasons given above, we allow the writ petition. The order dated 9.8.2000 passed by the Vice-Chancellor (Annexure-13 to the Writ Petition) is hereby quashed. The parties, in the facts and circumstances of the case, shall bear their own costs.