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1973 DIGILAW 335 (KAR)

B. NAGAPPA v. UNIVERSITY OF MYSORE

1973-11-28

BHEMIAH, VENKATACHALAIAH

body1973
( 1 ) THE appellant herein was an applicant for the post of Deputy Librarian in the university of Mysore (hereinafter referred to as the 'univer- sity' ). His application was placed before a Committee appointed by the syndicate of the University for its consideration. The said Committee appears to have recommended that the appellant may be appointed as the deputy Librarian. When the report of the Committee was received by the syndicate, the Syndicate rejected the said recommendation and resolved that the post should be re-advertised and fresh applications should be called lor. Aggrieved by the said resolution of the Syndicate, the appellant filed Writ Petition No. 1871,1973 on the file of this Court for the issue of a writ in the nature of mandamus directing the appointing authority functioning under the mysore University Act, 1956 (hereinafter referred to as the 'act'), to appoint him as the Deputy Librarian. The learned Judge who heard the writ petition dismissed it. Aggrieved by the said order of the learned Judge, the appellant has filed this appeal. ( 2 ) SHRI S. K. Venkataranga lyengar, learned Counsel for the appellant and Shri V. Tarakaram learned Counsel for the University, have taken us through the relevant provisions cf the Act and the Rules framed under S. 26 (1) of the Act (hereinafter referred to as the 'rules' ). S. 26 (1) of the Act which provides for the appointment to the staff of the University states that such appointments shall be made, in accordance with the rules made by the Chancellor in consultation with the Syndicate. In exercise of the, power conferred on the Chancellor by sub-sec. (1) of S. 26, the Chancellor has framed the Rules known as the Mysore University staff Appointment Rules, 1864. Under the said Rules, the post cf a deputy Librarian can be filled up either by promotion or by direct recruitment. The relevant part of the Rules reads as follows : " 50 per cent by promotion from among Assistant Librarians grade I on the basis of Seniority and 50 per cent by direct recruitment. " ( 3 ) THE appellant applied to the University to, be appointed as Deputy librarian by the method of direct recruitment. Rule 2 (c) of the Rules states that " Direct Recruitment" in relation to any post means appointment otherwise than by promotion, transfer or deputation from another service. " ( 3 ) THE appellant applied to the University to, be appointed as Deputy librarian by the method of direct recruitment. Rule 2 (c) of the Rules states that " Direct Recruitment" in relation to any post means appointment otherwise than by promotion, transfer or deputation from another service. Rule 4 (i) sets out the manner in which direct recruitment to the Univrsity staff can be made. It reads as follows :" Where posts are required to be filled by 'direct Recruitment' the selection to the appointment shall be made on merits, after giving adequate publicity to the recruitment. "the expression 'selection' appearing in Rule 4 (i) has again been defined by the Rule 2 (e) of the Rules as follows :" 'selection' means selection in accordance with these rules : (i) after consulting the Board of Appointment where such consultation is necessary; or (ii) after consulting a ' Selection Committee', if any, appointed for the purpose under these rules; or (iii) by the appointing auhority wherer no 'selection Committee' or ' Board of Appointment' has been constituted. "it is not disputed by the parties in this case that the appointment by direct recruitment can be made only by any one of the three methods set out in Rule 2 (e ). Clause (i) of Rule 2 (e) is not applicable to the case on hand because the constitution of Board of Appointment is necessary only in the case of recruitment of Professors, Readers and Lecturers, as can be scen from S. 26 (2) (a) of the Act. In clause (ii) of Rule, 2 (e) it is the appointing authority which should appoint a, candidate by direct recruitment after consulting a, Selection Commitee, if any, appointed for the purpose under the rules. On going through the Rules, we find there is no provision made therein for the appointment of a Selection Committee. Clause (iii) of Rule 2 (e) authorises the appointing authority himself to make a selection of a, candidate where no Selection Committee or Board of appointment has been constituted. From the facts narrated above, it is clear that the appointing authority, who is the Chancellor in this case did not choose to make the appointment directly without consulting any Selection Committee. The only clause on which dependence was placed by the appellant was clause (ii) of Rule 2 (e ). From the facts narrated above, it is clear that the appointing authority, who is the Chancellor in this case did not choose to make the appointment directly without consulting any Selection Committee. The only clause on which dependence was placed by the appellant was clause (ii) of Rule 2 (e ). As mentioned earlier, there is no provision in the Rules providing for the authority who should appoint a selection Committee,. When there is no such provision, it may be possible to imply that the appointing authority himself can appoint a Selection Committee for the purpoise of making selection of a candidate to a post to be filled by direct recruitment. It is not the case of either of the parties before us that the Chancellor appointed any Selection Committee to consider the case of the appellant. That Committee was appointed by the Syndicate. ( 4 ) SHRI Venkataranga lyengar argued that the recommendation made by a Committee appointed by the Syndicate, should be considered as a recommendation made by Selection Committee, if any, appointed for the purpose under the Rules. In support of his contention, he argued that the syndicate had power under S. 20 of the Act to appoint such a Committee for the purpose of direct recruitment of the staff of the University. In particular, he relied upon the opening words of S. 20 of the Act, namely," the administration of the University including the general superintendence and control over the institutions of the University shall be vested in the Syndicate"and also on Clauses (b) and (i) of Sec. 20. Shri V. Tarakaram, learned Counsel for the University, argued that the power of the syndicate to appoint a Selection Committee can be attributed to the power under sub-clauuse (iii) of clause (j) of S. 20 of the Act. We find it difficult to agree with either of the two learned Counsel. The enactment of sub- sec. (1) of S. 26 of the Act makes it abundantly clear that the power to frame Rules with regard to the appointment of the staff is taken out the scope of the other provisions of the Act. Any appointment to the staff of the University can be made only in accordance with the Rules framed under S. 26 (1) of the Act. Any appointment to the staff of the University can be made only in accordance with the Rules framed under S. 26 (1) of the Act. The power of general superintendence and control over the institutions of the University, the power to regulate and determine by rules all matters concerning the administration of the University in accordance with the Act, the Statutes, the Ordinances and the regulations and the power to administer and control all colleges, hostels, libraries, laboratories, museums and other institutions established or maintained by the University vested in the Syndicate by S. 20, cannot include within their scope the power to appoint the staff of the University. Similarly, clause (j) (iii) of S. 20 which authorises the Syndicate to prescribe the number, qualifications and emoluments of all other employees of the university, and to, define their duties and conditions of service, cannot be construed as including within its scope the power to appoint the staff of the University. It is also clear from the Rules that there is no reference to any power or duty of the Syndicate in the matter of appointment of the staff. If the rule making authority intended that the Syndicate should have any such power with regard to the appointment to the staff, it would have made necessary provision in the Rules. When the Rules are silent about the power of the Syndicate with regard to the appointment to the staff, we cannot read that power into it by relying upon the opening words of S. 20 of the Act. We therefore feel that the Syndicate had no power to appoint a Selection Committee for the purpose of making appointments under the Rules. The Committee appointed by the Syndicate which recommended the case of the appellant for being appointed as the Deputy Librarian, cannot be considered as equivalent to the Selection Committee referred to Rule 2 (e) (ii) of the Rules. Hence, any recommendation made by it would not be of any avail to the appellant. ( 5 ) IN view of the above conclusion, we feel that there is no substance in the contention of the appellant that the recommendation of the Committee appointed by the Syndicate shquld have been forwarded to the appointing authority namely, the Chancellor, for appointing him as the deputy Librarian on the basis of the said recommendation. ( 5 ) IN view of the above conclusion, we feel that there is no substance in the contention of the appellant that the recommendation of the Committee appointed by the Syndicate shquld have been forwarded to the appointing authority namely, the Chancellor, for appointing him as the deputy Librarian on the basis of the said recommendation. The appeal has therefore to fail although on a ground different from the one on which the writ petition was dismissed by the learned Judge who disposed of the writ petition. In the course of the order passed by the learned Judge, there is a reference to S. 29 of the Act, which authorises every authority of the university to appoint Committees to deal with, and report on any matter referred to them. The Committees referred to in S. 29 of the Act are quite different from the Selection Committee referred to in Clause (ii) (e) of r. 2 of the Rules. If the Syndicate had the power to make a recommendation with regard to the appointment of any candidate, then perhaps it would have been possible for the Syndicate to refer that matter to a Committee appointed by it under S. 29 of the Act. Further, it is obvious that any recommendation made by a Committee appointed by an authority under S. 29 is not binding on it, and it is open to the authority to reject any recommendation made by the Committee or to refer the matter to another committee or to take a decision different from the recommendation made by such a Committee. It is not necessary to say anything more about the scope and jurisdiction of Committees appointed by an authority under Sec. 29 of the Act because the said question is outside the scope of the present writ petition as a Committee appointed under S. 29 is different from a Selection Committee referred to in the Rules, ( 6 ) BEFORE concluding, we deem it necessary to observe that the Rules framed by the University under S. 26 (1) require to be reviewed and reenacted, if necessary, since we find that they are not adequate for the purpose of making recruitment to the staff of the University. In the Schedule attached to the Rules In Column No. 5, we find that in some cases appointment by direct recruitment has to be made on the recommendation of a selection Committee to be constituted by the University for the purpose. The expression 'university' is defined in the Act as University of Mysore. The University functions through the several authorities and functionaries referred to. in the course of the Act. It is not possible to find out which of the above authorities or functionaries is referred to by the expression 'university' in column No. 5 of the Schedule attached to the Rules. It is significant that in the case of the post of Deputy Librarian there is no reference to any Selection Committee at all. It is also not clear from the rules as to whether even in the case of those posts in respect of which the rules do not specifically require the matter to be referred to, a Selection committee, the matter can be referred to a Selection Committee and its recommendation sought for the purpose of making recruitment. We hope the University will take necessary steps to set right the Rules framed under S. 26 (1) of the Act. ( 7 ) AS we have held that the appellant has not made out in law that the recommendation of the Committee appointed by the Syndicate should have been sent to the Chancellor for appointing him as Deputy Librarian, we dismiss the appeal. There will, however, be no order as to costs. --- *** --- .