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1978 DIGILAW 66 (MP)

O. N. Tripathi v. University of Jabalpur

1978-01-24

G.P.SINGH, J.S.VERMA

body1978
Short Note : 1. The respondent No. 6 Dr. D.D. Mishra has been appointed Reader in Inorganic Chemistry, in the Department of Chemistry, University of Jabalpur, and is working in that capacity for several years. The petitioner, who was an unsuccessful applicant for that post, has filed this petition under Article 226 of the Constitution challenging the validity of the appointment of respondent No. 6. It is common ground before us that the only provision relevant for deciding the validity of this appointment is section 54 of the Jabalpur University Act, 1956 (Act No. 22 of 1956) which was applicable at the relevant time. The short question therefore, for our decision is the meaning of this provision, more particularly the proviso to sub-section (4) therein. Held : If We are right in our conclusion that the Chancellor's refusal to accord sanction to the proposal of the Executive Council sought in accordance with the proviso to sub-section (4) of section 54 does not amount to exercise of the Chancellor's power under that proviso, then that power would be available to the Chancellor till the sanction has been accorded to such a proposal. It is when the sanction is given by the Chancellor to such a proposal that the power available under the proviso is exhausted and the question of making any review can arise only thereafter. In other words, since the refusal to give sanction does not amount to exercise of the power but merely to the refusal to exercise that power, if the Chancellor subsequent to his initial refusal, on a reconsideration of the matter decides to accord sanction to such a proposal of the Executive Council, the sanction would be a valid exercise of the power under the proviso and it would not amount to review of the power given by the proviso. The present case is of this type. Initially, by Annexure P/10, the Chancellor merely refused to exercise that power when he directed re-advertisement of the post withholding his sanction to the proposal submitted by the Executive Council. Thereafter, on reconsideration of the matter in the light of further material placed by the authorities, including the comments in Annexure-R/23 dated 19-4-1972, the Chancellor for the first time exercised the power under the proviso when he accorded his sanction to the proposal of the Executive Council by Annexure-P/15, dated 11-6-1972. Thereafter, on reconsideration of the matter in the light of further material placed by the authorities, including the comments in Annexure-R/23 dated 19-4-1972, the Chancellor for the first time exercised the power under the proviso when he accorded his sanction to the proposal of the Executive Council by Annexure-P/15, dated 11-6-1972. On such a construction of this provision, there is no dispute that the appointment of respondent No. 6 was validly made in accordance with section 54 and no further question for consideration would arise. In our opinion, the question of review would arise only when the Chancellor having first accorded his sanction later decides to reconsider his decision and not conversely. Admittedly this is not a case of that type. 2. A similar question in the context of section 10 (1) of the Industrial Disputes Act, 1947 arose for decision by a Division Bench (Dixit, C.J. and Singh, J.) in Rewa Coal Fields Ltd., Dhanpuri, Shahdol and another v. Central Govt., Industrial Tribunal-cum-Labour Court, Jabalpur and others ( 1969 JLJ 433 ). It was contended therein that the appropriate Government having once refused to make a reference under section 10(1) of the Industrial Disputes Act, 1947, the Government's power was exhausted and later on a re-consideration, it was not within the power of the Government to make such a reference, the power having been exhausted by the ear1ier refusal to make the reference. That argument was repelled by Singh, J. speaking for the Division Bench. 3. This decision was quoted with approval in M/s Western India Watch Co., Ltd. v. The Western India Watch Co. Workers Union and others ( AIR 1970 SC 1205 ) and the above view was expressly affirmed. Petition dismissed. 1969 JLJ 433 , AIR 1970 SC 1205 relied on. AIR 1963 Pat. 437 distinguished.