Jadunandan Sahav v. Chancellor Bihar University — 1975 DIGILAW 115 (PAT)

Judgment B.D.SINGH, J. 1. The application by Dr. Jadunandan Sahay petitioner under Articles 226 and 227 of the Constitution of India is directed against the resolution dated the 19th December, 1971 (Annexure 4) of the Syndicate of the Bihar University through the Vice-Chancellor of the said University (respondent No. 2) under which Dr. Taleshwar Sharma (respondent No. 4) has been appointed to the post of the University Professor in the Department of Chemistry at Muzaffarpur. In the application the petitioner has prayed for quashing the appointment of respondent No. 4 as contained in Annexure 4 to the writ application. 2. In order to appreciate the points involved in this application, it would be necessary to give certain facts. A temporary post of the University Professor in Chemistry was advertised by the Public Service Commission (respondent No. 3) on the 17th of March. 1971, in the Bihar Gazette (Part IX) at page 141 by advertisement No. 19/1971 and apart from other qualifications the minimum qualification for the said post was at least ten years teaching experience in the Post-Graduate Department, as laid down under Article 3 (1) of the Bihar University Calendar (Volume 1) 1964. Statutes XV (hereinafter referred to as the "Statutes"). A relevant portion of the above Article of the Statutes has been made Annexure-1 to the writ application and an extract from the Bihar Gazette Advertising the post has also been made Annexure 2 to the application. In paragraph 3 of the application the petitioner has stated that he was already a Reader in Chemistry in the Bihar University posted in L. S. College. Muzaffarpur and he took his M.Sc. in Chemistry in 1944, from the Banaras Hindu University and obtained his Ph.D. also from this University in 1947 and ioined the Bihar Educational Service in the same year and thereafter the petitioner also obtained Ph.D. degree from the University of London in 1950, and has experience of teaching in Post-Graduate Classes for over sixteen years. In Annexure 3 to the application, the petitioner has given the particulars regarding his experience. The petitioner finding himself as a suitable candidate, he applied for the post as advertised in the Bihar Gazette (Annexure 2). In other part of the application the petitioner has stated that he was selected for the interview by respondent No. 3, which took place on the 23rd September. 1971. The petitioner finding himself as a suitable candidate, he applied for the post as advertised in the Bihar Gazette (Annexure 2). In other part of the application the petitioner has stated that he was selected for the interview by respondent No. 3, which took place on the 23rd September. 1971. In the said interview, the petitioner along with respondent No. 4 and several other candidates had appeared. On the 19th December, 1971, the Syndicate of the Bihar University considered the two names recommended by the Bihar Public Service Commission (respondent No. 3) in order of preference. Those two names were (1) Dr. Taleshwar Sharma (respondent No. 4) and (2) Dr. R. C. Roy.Reader of Sagaur University. The Syndicate however appointed respondent No. 4 by the impugned Resolution dated the 19th December, 1971, as contained in Annexure 4. Respondent No. 4 joined the post on the 21st of December. 1971, and is continuing since then. In paragraph 6 of the application, the petitioner has stated that respondent No. 4 passed M.Sc. in the year 1958 and joined as Lecturer in Ranchi College on the 18th September 1958, and proceeded on extraordinary leave without pay for higher studies in U. S. A. for a period of two years with effect from 6th August 1960 and applied for extension of his leave but before sanction of his leave, it is stated he resigned his post by his letter dated the 22nd of November 1963 (wrongly stated as "the 23rd of November, 1963" in paragraph 6 of the application). A copy of the said resignation has been brought on the record as Annexure-F to the supplementary counter-affidavit filed on behalf of respondents Nos. 1 and 2, on the 7th May. 1975 and the resignation was accepted by the Syndicate of the Ranchi University by its resolution dated the 18th of April, 1964, as stated in the supplementary counter-affidavit. The petitioner in paragraph 6 has also given an extract from the application of respondent No. 4 to the post of the University Professor addressed to respondent No. 3. 1975 and the resignation was accepted by the Syndicate of the Ranchi University by its resolution dated the 18th of April, 1964, as stated in the supplementary counter-affidavit. The petitioner in paragraph 6 has also given an extract from the application of respondent No. 4 to the post of the University Professor addressed to respondent No. 3. The said extract from paragraph 6 of the application is reproduced below: 327_LabCI.htm On the basis of the said extract and averment the petitioner submitted that respondent No. 4 did not fulfil the minimum qualifications of ten years Post-Graduate teaching experience as fixed by the Statutes, and the decision of the Syndicate appointing respondent No. 4 was void and his appointment was illegal and. therefore, respondent No. 4 had no right to continue to that post. In the other portion of the application, the petitioner has stated that he learnt about the recommendation of respondent No. 4 to the post of the University Professor and was surprised about it, as respondent No. 4 had not the requisite minimum qualification under the Statutes. The petitioner, therefore, sent a representation to the Chancellor. Bihar University (respondent No. 11 through the Vice-Chancellor (respondent No. 2) on the 9th of November. 1971, bringing to the notice of the authorities that respondent No. 4 had suppressed the material facts and supplied false data regarding his qualifications, and thus secured the recommendation by misleading respondent No. 3 and as such respondent No. 4 should not have been appointed to the said post. A copy of the said representation was also sent to respondent No. 3. This representation is contained in Annexure 5 to the writ application. Respondent No. 1 sent a letter dated the 15th November. 1971, (Annexure 6) to respondent No. 2 asking for parawise comments on the representation filed by the petitioner. Subsequently, the petitioner also sent a copy of his representation to all the members of the Syndicate and to respondent No. 2 along with a copy of the letter of respondent No. 1. Respondent No. 2 thereafter passed the impugned Resolution (Annexure 4) and in the said resolution after appointing respondent No. 4 resolved that a reply be sent to the Chancellor to his letter. On query from respondent No. 2, regarding the teaching experience of respondent No. 4. Respondent No. 2 thereafter passed the impugned Resolution (Annexure 4) and in the said resolution after appointing respondent No. 4 resolved that a reply be sent to the Chancellor to his letter. On query from respondent No. 2, regarding the teaching experience of respondent No. 4. the Treasurer of the Ranchi University wrote a letter on the 13th March, 1972 (Annexure 7), which, according to the petitioner, clearly indicated that respondent No. 4 had not the minimum, ten years teaching experience in Post-Graduate Department. The petitioner subsequently went on sending reminders after reminders in the form of representation to the Chancellor on various dates and the last one was dated the 13th of April, 1973 (Annexure 8). The petitioner also sent a copy of the representation on the 23rd March, 1972, to respondent No. 3 with a copy of the representation (Annexure 8). The officer on special duty of the Ranchi University, in answer to the probe by the Chancellor had written a letter dated the 29th of July. 1972 (Annexure 9) which also, according to the petitioner supported his submission that respondent No. 4 had not the requisite minimum qualification of ten years teaching experience in Post-Graduate Department. Respondent No. 1. however, finally rejected the representation of the petitioner on the 16th of October, 1973. (vide Annexure 10). Thereafter the petitioner came up to this Court and obtained a Rule on the 11th December, 1973. 3. A counter-affidavit was filed on behalf of respondent No. 4 on the 2nd May, 1974. inter alia stating therein that respondent No. 4 had more than the requisite qualification justifying his appointment. A separate counter-affidavit was filed on behalf of respondents Nos. 1 and 2 on the 4th September, 1974, inter alia supporting the case of respondent No. 4 justifying his appointment. The petitioner filed a supplementary affidavit on the 10th October, 1974 by way of reply to the counter-affidavit filed by respondent No. 4. On that very day the petitioner also filed a separate affidavit in reply to the counter-affidavit filed on behalf of respondents Nos. 1 and 2. Thereafter on behalf of respondents Nos. 1 and 2 an affidavit was filed by way of rejoinder on the 28th February 1975 and lastly a supplementary affidavit has been filed on behalf of respondents Nos. 1 and 2 on the 7th May. 1 and 2. Thereafter on behalf of respondents Nos. 1 and 2 an affidavit was filed by way of rejoinder on the 28th February 1975 and lastly a supplementary affidavit has been filed on behalf of respondents Nos. 1 and 2 on the 7th May. 1975, as mentioned earlier annexing a copy of the resignation of respondent No. 4 as Annexure-F. 4. Mr. Basudeva Prasad, learned counsel appearing on behalf of the petitioner has assailed the resolution contained under Annexure-4, appointing respondent No. 4. In order to find support to his contention that respondent No. 4 had not the requisite minimum ten years Post-Graduate Teaching experience Mr. Prasad has drawn our attention to some of the relevant dates concerning respondent No. 4 at one place. On the 18th September, 1958, respondent No. 4 joined as a Lecturer in the Ranchi College. On the 6th of August, 1960, a leave for two years was granted to respondent No. 4 for going abroad for higher studies. Subsequently respondent No. 4 applied for extension of the leave. On the 20th November. 1963, the Syndicate of the University of Bihar, resolved to grant extension of his leave on condition that Shri Sharma should give an undertaking to serve the Ranchi University for a period of at least three years on his return from abroad. Before the notification granting extension of the leave could be issued, Shree Sharma tendered his resignation from abroad on the 22nd of November. 1963 (Annexure F) which was accepted by the Syndicate on the 18th April, 1974 (sic) (Annexure 7). Sometime in August 1964. respondent No. 4 joined Indian Institute of Technology at Kanpur as a Lecturer and thereafter he was promoted as an Assistant Professor of that Institute in November, 1966 and continued in that capacity until the 27th of April. 1971. On the 19th December. 1971, by the resolution contained under Annexure 4 he was appointed by the Bihar University. On the 21st of December. 1971, respondent No. 4 joined as Professor in the University of Bihar at Muzaffarpur. On the basis of the above data Mr. Prasad has raised the following points for consideration by this Court: (i) Respondent No. 4 is not entitled to count his period of study leave in service from 6th August. 1960, to 5th of August, 1962, of Post-Graduate teaching experience. On the basis of the above data Mr. Prasad has raised the following points for consideration by this Court: (i) Respondent No. 4 is not entitled to count his period of study leave in service from 6th August. 1960, to 5th of August, 1962, of Post-Graduate teaching experience. (ii) In view of the resignation dated the 22nd November, 1963, respondent No. 4 has entailed forfeiture of past services of two years rendered by him in the Ranchi University from 18th September 1958 to the 5th August, 1960. (iii) The teaching experience, which the respondent has alleged to have obtained, while being in service in I. I. T.. Kanpur could not have been counted for his appointment under the Bihar University for two reasons; (a) because he did not acquire the teaching experience in Post Graduate Department and (b) even if he had acquired the Post-Graduate teaching experience the one obtained in I. I. T., Kanpur, could not have been counted as the teaching experience, according to the Statutes. (iv) The period spent in Chicago by respondent No. 4 from August, 1960 to July. 1964, should not have been counted as the Post-Graduate teaching experience, as obviously respondent No. 4 went abroad for study as a student and not for imparting training as a teacher. 5. In our opinion, the most important point out of the four points enumerated above, for consideration is point No. ii. In this connection Mr. Prasad drew our attention to the provisions contained under sub-clauses (a) and (b) of Article 10 (31 of the Statutes, Chapter XV-A. the relevant portion of which reads thus: "(3) (a) Resignation of the service, or dismissal or removal from it for misconduct, insolvency inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service. (b) Resignation of an appointment to take up another appointment service in which counts is not a resignation of the service." In our opinion, the result of the case chiefly depends upon the interpretation on the construction of the above provisions. Mr. Prasad has emphasised that in the instant case, it is the admitted case of the parties that respondent No. 4 had resigned from his service of the Ranchi University and his resignation letter dated the 22nd November. 1963, is Annexure F to the affidavit dated 7-5-1975 filed on behalf of respondents Nos. 1 and 2. Mr. Prasad has emphasised that in the instant case, it is the admitted case of the parties that respondent No. 4 had resigned from his service of the Ranchi University and his resignation letter dated the 22nd November. 1963, is Annexure F to the affidavit dated 7-5-1975 filed on behalf of respondents Nos. 1 and 2. It is submitted that the said Statute is also applicable to the Ranchi University. His resignation of the service would, therefore, entail forfeiture of past services. He contended that the provision for forfeiture of Past service under sub-clauses (a) and (b) of Article 10 (3) is a deeming clause. Therefore according to him, the past service would also include past experience. If that period is excluded from service, (i.e., from 18th September. 1958 to 5th August, 1960, which comes to two years) then evidently respondent No. 4 would not have acquired the requisite ten years Post-Graduate teaching experience of the department. In order to find support to his contention he relied on a very recent decision of the Supreme Court in the case of Mr. Boucher Pierre Andre v. Superintendent Central Jail Tihar. New Delhi. ( AIR 1975 SC 164 ) and he drew our attention to paragraph 3 at p. 166 of the report, where their Lordships were considering the principle regarding the interpretation of a legal fiction namely, a deeming clause. It was observed: "............ It is now well settled law that where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusion. To quote the words of Lord Asquith in East End Dwellings Co. Ltd, v. Finsbury Borough Council, 1952 AC 109 at p. 132: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs: it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." Mr. Prasad submits that the provisions contained under sub-clause (b) of CI. The statute says that you must imagine a certain state of affairs: it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." Mr. Prasad submits that the provisions contained under sub-clause (b) of CI. (3) of Article 10 of the Statute does not save respondent No. 4 from incurring forfeiture. It is true that Clause 3 fb) is a proviso to Clause (3) (a), but that also according to Mr. Prasad, is also not available to respondent No. 4 on the facts and circumstances of the instant case. He drew our attention to Annexure F itself in order to show the purpose for which the resignation was tendered by respondent No. 4. Reliance on behalf of the respondents was placed on the first paragraph of the resignation letter which reads thus: "I have been offered an appointment by an Indian Institute and therefore wish to inform you that I withdraw from the post of Teacher in Chemistry at Ranchi College." On behalf of the respondents it was contended that the resignation of respondent No. 4 was to take up another appointment. Mr. Prasad, however, submitted that the above paragraph of the resignation letter does not mention as to which institute respondent No. 4 was offered. That apart, the intention of the former of C1. (3) (b) was that the persons so resigning must also take up another appointment, service to which counts, meaning thereby the service to the fresh appointment which could have been counted by the Bihar University in order to count his Post-Graduate teaching experience. Therefore according to him, the said assertion in the resignation letter is of no avail to respondent No. 4. He further submitted that clause (3) (b) was not attracted in the instant case, also because it was a misconduct on the part of respondent No. 4 to over-stay after the expiry of the leave, without obtaining extension of the leave, which was granted to respondent No. 4. He referred to the Minutes of the Syndicate Nos. 17 to 24. At page 10, Appendix II. He referred to the Minutes of the Syndicate Nos. 17 to 24. At page 10, Appendix II. which relates to the Minutes of the Syndicate No. 19 dated the 7th March, 1964, reads thus: "Shri T. Sharma who was appointed lecturer in Chemistry with effect from the 19th September, 1958 was granted extraordinary leave without pay for a period of two years for higher studies abroad with effect from the 6th August 1960 He prayed for extension till January 1964 and the syndicate at its meeting held on the 20th November, 1963 resolved to grant extension on the condition that Shri Sharma should give an undertaking to serve the Ranchi University for a period of at least three years on his return from abroad. Before the notification granting the extension of leave could be issued, Shri Sharma tendered resignation as he was offered appointment by an Indian Institute." He pointed out that in the said Minute, it was resolved to grant extension on the condition that Shri Sharma should give an undertaking to serve the Ranchi University for at least three years on his return from abroad. He submitted that this was a condition precedent. Instead of giving an undertaking, respondent No. 4 tendered his resignation as contained in Annexure F dated the 22nd November, 1963. Therefore, he urged that if his resignation is considered as saviour under Clause (3) (b) that would amount to giving premium on his unauthorised absence. According to him Clause (31 (b) is available, only in those cases where a person during the period of his leave tenders his resignation, for taking up another appointment and he emphasised that was the intention of the framers of the said provision. In our view also clause (3) (b) of Article 10 does not rescue respondent No. 4 on the terms of his resignation. Learned Advocate-General appearing on behalf of respondent No. 1 has conceded to that extent. Mr. Prasad also referred Clause (5) fb) of Article 10 which reads thus: "(b) Unauthorised absence is continuation of authorised leave of absence so long as the office of the absentee is not substantively filled; if his office is substantively filled the past service of the absence is forfeited." 6. Mr. Prasad submitted. Mr. Prasad also referred Clause (5) fb) of Article 10 which reads thus: "(b) Unauthorised absence is continuation of authorised leave of absence so long as the office of the absentee is not substantively filled; if his office is substantively filled the past service of the absence is forfeited." 6. Mr. Prasad submitted. this provision also is of no avail to respondent No. 4 as in the instant case, the post of respondent No. 4 was filled up during his unauthorised leave. In our opinion this part of the submission of Mr. Prasad is not tenable as in the instant case no material has been placed before us in order to show that the vacancy caused due to unauthorised absence of respondent No. 4 was substantively filled up. Therefore, as we have mentioned earlier the result of the case chiefly depends upon the construction of sub-clause fb) of clause (3) of Article 10 of the Statutes (Chapter XV-A). 7. The learned Advocate-General appearing on behalf of respondent No. 1, has submitted that the resignation of the service entails forfeiture of past services occurring under sub-clause (3) (a) of Article 10 of the Statutes (Chapter XV-A), is not a deeming clause. Therefore it would not be necessary in this case to take recourse to the principles of interpretation available for a deeming clause. The intention of the framers of the Statutes was also not to treat the same as a deeming clause, as in all cases of resignation the past services will come to an end. According to him, the ordinary meaning should be given to the word used by the framers in the said sub-clause. In order to find the ordinary meaning of the word "Entail", learned Advocate-General referred to us the Shorter Oxford English Dictionary (Third Edition) 1956 at page 616. It has various meanings but, according to him, the relevant meaning for the purpose of the said sub-clause is "to necessitate; to involve logically", whereas the meaning of the word "Forfeiture" occurring in the said sub-clause he has referred to us the same Dictionary at page 836 which, inter alia means, "The fact of losing or becoming liable to lose in consequence of breach of engagement". Therefore, according to him. by tendering resignation, respondent No. 4 was liable to lose his office in consequence of the breach of agreement. Therefore, according to him. by tendering resignation, respondent No. 4 was liable to lose his office in consequence of the breach of agreement. Therefore, it was apparent that, in that case, it was essential on the part of the Syndicate of the University to have ordered specifically that in view of the resignation submitted by respondent No, 4, his past services were forfeited. The learned Advocate- General pointed out that in the instant case there is no such order of the Syndicate. He urged that in the instant case, the power of forfeiture was not exercised by the Syndicate. He as well as the learned Counsel for the other respondents argued that even if it is treated as a deeming clause the words, past services, occurring in the said sub-clause would not include past experience, which respondent No. 4 had obtained during the course of his services. Referring to AIR 1975 SC 164 (Supra) on which reliance was placed by Mr. Prasad, learned Counsel for the petitioner, it was contended that in that case also their Lordships pointed out that where a legal fiction is created full effect must be given to it and it should be carried to its logical conclusion. Learned Counsel for the respondents has laid emphasis upon its logical conclusion. Learned Counsel for the respondents by referring to the extract from 1952 AC 109 at p. 132 submitted that the words must inevitably have flowed from or accompanied it go to show that while construing the legal fiction one must be careful to find out as to what inevitable would have followed. In the instant case one cannot be certain that past experience would have inevitably followed from the words past service. In our opinion, the submission of learned Counsel for the respondents in this regard is correct as even the words past service on the facts and circumstances of the instant case have to be construed in a limited sense, as it is obvious that respondent No. 4 being in the service as a lecturer during that period must have done various kinds of services; for example the examination of papers of the examinees. That will also be a kind of service rendered by him. That will also be a kind of service rendered by him. Of course the forfeiture of the past service of respondent No. 4 would not include that part of his service or the services which he rendered to the University, while delivering lectures or teaching those students. It would also not forfeit his other privileges and that seems to be the intention of the framers of the Statutes. Besides, the word "Forfeiture" as well established entails penalty, and it has to be construed strictly. It will be useful to extract a passage from Sutherland Statutory Construction, 3rd Edition (Vol. 3) paragraph 5605 p. 54, which states: "The rule that penal statutes are strictly construed establishes a requirement of definiteness which must be met by the legislative draftsmen. Thus it is not. uncommon to find penal statutes declared void for indefiniteness. The words of the criminal statute must be such as to leave no reasonable doubt as to the intention of the legislature, and where such doubt exists the liberty of the citizen is favoured. Penal statutes will not be construed to include anything beyond their letter and beyond the spirit of the words employed by the statute." If really the framers of the Statutes wanted to forfeit all past experiences as well, they could have very easily added the same in the said sub-clause but they have not done so. Reference may be made to (1875) 1 Ch D 182 (Re-Coal Economising Gas Company). There also the deeming clause came up for consideration where it was observed at pp. 188-189 as follows: "Where the Legislature provides that something is to be deemed other than it is, we must be careful to see within what bounds and for what purpose it is to be deemed." In the case of Arthur Hill v. The East and West Indian Dock Company, (1884) 9 App Cas 448, it was held at p. 456 as follows: "It appears to me that both of these constructions to which I have referred, the construction contended for by. the appellant and the construction placed upon the section by James. the appellant and the construction placed upon the section by James. L. J. are possible constructions; and where there are two constructions the one of which will do, as it seems to me, great and unnecessary injustice, and the other of which will avoid that justice, and will keep exactly within the purpose for which the statute was passed it is the bounden duty of the Court to adopt the second and not to adopt the first of those constructions." It will be also relevant to refer to the case of State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory, Quilon, ( AIR 1953 SC 333 ) where their Lordships have also relied on those two cases referred to above, and observed that when a legal fiction was created, one must interfere that (sic) what was the purpose for which it was so created. Reliance has also been placed on a decision of the Privy Council in the case of Radhakissen Chamaria v. Durga Prosad Chamaria. (AIR 1940 PC 167). Their Lordships at p. 170 has observed that the intention of the Legislature was to be looked into, to find out as to for what purpose the deeming clause was made. Therefore, after a careful consideration of the matter, we are of the view that the words past services occurring in the said sub-clause, would not include the past experiences and it could not have entailed forfeiture of the past experience of respondent No. 4, which he acquired during the course of the said service. Thus, the experience which respondent No. 4 had acquired in the said service from 18th September. 1958. to the 5th of August, 1960, was rightly taken into account by the Syndicate while appointing respondent No. 4. 8. Now we take up for consideration the submissions of Mr. Prasad, learned Counsel for the petitioner under point No. 1, Mr, Prasad under thi9 head submitted that respondent No. 4 was not entitled to count the period when he had gone abroad on leave. It may be recalled that on the 6th August, 1960, respondent No. 4 had gone abroad after obtaining leave for a period of two years. According to Mr. Prasad respondent No. 4 could not complete his studies within the period for which the leave was granted to him. Thereafter, he filed an application for extension of the period of leave till January 1964. Mr. According to Mr. Prasad respondent No. 4 could not complete his studies within the period for which the leave was granted to him. Thereafter, he filed an application for extension of the period of leave till January 1964. Mr. Prasad again refers to the minutes of the Syndicate Nos. 17 to 24 at page 10, Appendix II, relating to the minutes of the Syndicate dated the 7th March, 1964 showing that the Syndicate at a meeting dated the 20th November, 1963, resolved to grant extension provided Shri Sharma undertakes to serve the Ranchi University for a period of at least three years on his return from abroad, but before notification regarding grant of leave could be issued, respondent No. 4 tendered his resignation as he was offered appointment by an Indian Institute. Mr. Prasad has referred to the "General conditions of Leave" and the main heading, "Leave" occurring under Article 5, (A) of the Statutes (Chapter XV-A) and also Clause (42) under the above Article 5, which reads thus: "(42) Study leave will count as service for promotion but not for leave. It will not affect any leave which may already be due to a teacher; it will not count as extra leave on half pay and will not be taken into account in reckoning the aggregate amount of leave on half pay leave taken by the teacher towards the maximum period admissible under these Statutes." On the basis of the said sub-clause. Mr. Prasad submitted that the period for which leave was granted to respondent No. 4 ought not to have been taken into account, while appointing him on the basis of the advertisement, as obviously respondent No. 4 was directly recruited and he was not appointed by promotion. The framers of the Statutes clearly were of the view that the said leave would be counted as service only for promotion. 9. In our opinion, it would not be reasonable to construe the said provision that the study leave would not be counted as service in the case of direct appointment. If it could have been counted for promotion, it is reasonable that it should also be counted for direct recruitment. However, we are not concerned so much for interpretation of the provisions for the "Study leave". If it could have been counted for promotion, it is reasonable that it should also be counted for direct recruitment. However, we are not concerned so much for interpretation of the provisions for the "Study leave". In the instant case, on the case of the petitioner himself, respondent No. 4 was granted extraordinary leave (vide paragraph 6 of the application of the petitioner) and the extracts of the minutes referred to above clearly show that extraordinary leave was granted to respondent No. 4). Clause (28) (a) of Article 3 of the Statutes (Chapter XV-A) deals with "Extraordinary Leave" and it reads thus: "Extraordinary leave without pay may be granted to a University servant in special circumstances: (i) When no other leave is admissible under these Statutes; (ii) When, other leave being admissible, the University servant concerned applies in writing for the grant of extraordinary leave." 10. Mr. Prasad has also contended that even assuming that extraordinary leave was granted to respondent No. 4, there is no reason to count the period of leave as having been utilised by respondent No. 4 in acquiring experience. It may be that a person after going abroad idles away his time and instead of gaining experience, he might lose his experience. In my opinion, this submission of Mr. Prasad is not tenable on the facts and the circumstances of the instant case. Reference may be made to Annexure-15 to the affidavit dated the 10th August. 1974, which the petitioner has filed in reply to the counter affidavit of respondent No. 4. The relevant portion of Annexure-15 reads thus; "Mr. Taleshwar Sharma received the M. S. Degree from the University of Chicago on June 8, 1962. He was awarded the Ph. D. Degree on December 13, 1963. His thesis work was supervised by Professor Robert Clayton who is still at this University. Mr. Sharma served as a Teaching Assistant during his first year of graduate study. I hope that this information will he of help to you. Sincerely yours, Sd/- Gregory L. Boshart, Executive Officer, Department of Chemistry." From the above certificate, it is clear that respondent No. 4 had received the degree of M. S. from the University of Chicago and he was awarded Ph.D. Degree. His office work was supervised by a Professor Robert Clayton. Besides he served as a Teaching Assistant during his first year of graduate study. His office work was supervised by a Professor Robert Clayton. Besides he served as a Teaching Assistant during his first year of graduate study. Therefore we cannot say that he idled away his time. It is true that he took more time than the initial grant of leave to him by the Syndicate, but it cannot be said that respondent No. 4 had not utilised his extraordinary leave for higher studies. 11. Now, a question arises as to what period of the extraordiary leave should be considered as available to him to be counted as obtaining experience. It was contended on behalf of the respondent that the entire period of his study abroad should be treated as countable beginning from 6th of August to the 1st of August, 1964, when he returned to India. In our opinion, respondent No. 4 is not entitled in the circumstances to count the period beyond which the leave was not granted, i.e.. he is entitled only for the period of two years beginning from 6th August 1960 to the 5th August 1962. 12. Now we take up for consideration point No. (iii). In order to find support to his contention Mr. Prasad drew our attention to Article 3 (1) (a) of the Statutes (Chapter XV), which is as follows:- 327AA_LabCI.htm Learned Counsel emphasised the requirements of having at least ten years teaching experience in Post-Graduate Dept. and also of guiding research. He contended that the intention of the framers of the Article of the Statutes was that such experience should have been acquired only in the Department of Chemistry from the Universities, to which the Statutes govern. In our opinion the word Department occurring in Article 3 (1) (a) is not confined only to those Universities to which the Statutes govern, as it is not specifically mentioned therein that by Department the framers meant the Department confined to those Universities alone to which the Statutes govern. Reference may be made also to a certificate from Dr. C. N. R. Rao, Professor of Chemistry and Dean of Research and Development of Indian Institute of Technology, Kanpur, dated the 18th September, 1971, as contained in Annexure-B to the counter-affidavit filed on behalf of respondents Nos. 1 and 2 on the 4th of September, 1974, the relevant portion of which is to the following effect: "Dr. C. N. R. Rao, Professor of Chemistry and Dean of Research and Development of Indian Institute of Technology, Kanpur, dated the 18th September, 1971, as contained in Annexure-B to the counter-affidavit filed on behalf of respondents Nos. 1 and 2 on the 4th of September, 1974, the relevant portion of which is to the following effect: "Dr. T. Sharma, Assistant Professor of this Department has been working here since August 1964. He has been involved in under-graduate and Post-Graduate Teaching in Chemistry. He has been carrying out research work in Stable Isotope Chemistry and has guided the Ph.D. Thesis of a few students, three of whom have obtained Ph.D. Degree. He has also had two Post-Graduate fellows working with him............." It will be pertinent to refer to a recent judgment of the Supreme Court on the point of testimonials in the case of State of Bihar v. A. K. Mukherjee ( AIR 1975 SC 192 ) = (1975 Lab IC 141) where their Lordships in paragraph 18 have observed thus: "The State has suggested that some clarificatory testimonials might have been procured later from the professors abroad. There is nothing wrong in obtaining such testimonials to clarify the position and we see no unusual bias in these testimonials from such outstanding Professors of Orthopaedics in British Universities." In the instant case also Dr. C. N. R. Rao, Professor of Chemistry. Kanpur, has given the said testimonial. We see no reason to doubt the testimonial. Mr, Prasad has submitted that the said testimonial does not refer that he was doing Post-Graduate teaching in the Department of Chemistry. According to him, he had done, if at all, teaching, which had merely the standard of Post-Graduate. It appears, he contended that in the said Institution, there was no department as such, as for example in the Patna University there is a department of Chemistry for the Post- Graduate Teaching. In our opinion that would not make any substantial difference in the experience which respondent No. 4 had obtained there of the Post-Graduate Teaching in Chemistry. Therefore, according to us respondent No. 4s experience for the Post-Graduate Teaching in Chemistry in I. I. T. from August 1964 to 27th of April. 1971, has rightly been taken into account. 13. Now we advert to consider Point No. (iv). On this point Mr. Therefore, according to us respondent No. 4s experience for the Post-Graduate Teaching in Chemistry in I. I. T. from August 1964 to 27th of April. 1971, has rightly been taken into account. 13. Now we advert to consider Point No. (iv). On this point Mr. Prasad has contended that respondent No. 4 had not obtained the Post-Graduate Teaching experience while he was in the University of Chicago. According to him. he was merely a student and that could not have been considered by any stretch of imagination as acquiring Post-Graduate teaching experience. In our view this submission also of Mr. Prasad is not acceptable in view of the extract of Annexure-15, which we have quoted above. Gregory L. Boshart, executive Officer. Department of Chemistry of the University has certified that Mr. Sharma served as a Teaching Assistant during his first period of Graduate study and there is no reason to doubt the genuineness of the said certificate. It cannot be said that he was merely a student there. Even assuming that technically he was not doing teaching work in Post-Graduate Department but the degree which he had obtained in the said University as well as his teaching work as Teaching Assistant would in our opinion, enhance his teaching experience in the subject but, as mentioned above, only two years period would be counted for his study abroad, because respondent No. 4 was granted leave as mentioned above, only for two years. 14. On our findings, respondent No. 4 therefore had the requisite qualification of at least ten years teaching experience in Post-Graduate Department, and, therefore, he was rightly appointed, and we see no valid reason to interfere with his appointment to the post of the University Professor in the Department of Chemistry. 15. Mr. Indu Shekhar Prasad Sinha learned Counsel appearing on behalf of respondent No. 2 and Mr. Bindeshwari Choudhary, learned Counsel appearing on behalf of respondent No. 4 had also taken a preliminary objection on the maintainability of the application and contended that the petitioner had no locus standi, as the Public Service Commission in the interview had not considered him fit for appointment to the post in question, and it was further submitted that the petitioner was not qualified and had not the requisite qualification for the said appointment and, therefore, he had no right to come to this Court under writ jurisdiction. In our opinion those submissions of learned Counsel for the above respondents were not acceptable i_n view of the Judgments in Godde Venkateshwara Rao v. Government of Andhra Pradesh, ( AIR 1966 SC 828 ) and K. C. Pashanimala v. State of Kerala, ( AIR 1969 Ker 154 ) (FB), where it was held that a person aggrieved has got a right to come to this Court under writ jurisdiction and a person aggrieved has a very wide meaning. Admittedly, the petitioner was one of the candidates and he was not selected. Obviously, therefore he was the person aggrieved. Besides it may be noted that it is a settled principle of law that generally the question of maintainability is not entertained after once the application has been admitted by this Court, particularly when learned Counsel for respondent No. 2 was heard at the time of admission of the writ application. Therefore, in our opinion, the submissions of learned Counsel on the point of maintainability and locus standi, fail. 16. In the result, however for the reasons stated above the application is dismissed and the resolution dated the 19th December, 1971 as contained in Annexure-4 to the writ application is confirmed. In the circumstances, however, there will be no order as to costs.