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Allahabad High Court · body

1982 DIGILAW 525 (ALL)

R. C. Gupta v. Chancellor Kumaun University, Lucknow

1982-04-09

K.C.AGARWAL, N.N.SHARMA

body1982
ORDER 1. This petition and the connected writ petition of Dr. (Km.) Uma Tewari challenge the order of the Chancellor dated 30th March, 1982, setting aside the appointments of the two petitioners and three other persons made on the post of lecturers in the Botany Department of the constituent College Almora of the Kumaun University. 2. On 23rd Jan., 1979, Kumaun University, Naini Tal, made (gave) advertisement for appointment of teachers in various Departments of its constituent Colleges. This advertisement specified the number of vacancies which were desired to be filled. In the subject of Botany the vacancies notified were two. In pursuance of the advertisement, certain persons applied for appointment, whose applications were considered by the Selection Committee on June 19/20 1979, and the Selection Committee prepared two panels one regular and the other for candidates in the waiting list. In the first panel, seven persons were recommended. Although the University had advertised only two posts, it proceeded to fill up seven posts of lecturers acting under the foot note to the advertisement. The foot note read as under : "The University reserves the right to vary the number of vacancies under any category." 3. In respect of the appointment of Dr. R. C. Gupta there was a disagreement between the Selection Committee and the Executive Council, which was referred to the Chancellor under S. 31 (8) of the U. P. State Universities Act. The Chancellor approved the proceedings of selection. Respondent 3 Dr. Bheem Datt Suteri, who was also a candidate, since was not selected, he preferred a representation under S. 68 of the U. P. State Universities Act to the Chancellor alleging, inter alia, that all the posts had not been advertised, as required by S. 31 (10) of the Act, as such, the appointments made were invalid. 4. On the receipt of the representation, the petitioner was given a notice by the Chancellor, respondent 1. He also called upon the petitioner to show cause why was his appointment as lecturer not liable to be quashed in exercise of his suo motu powers under S. 68 of the U. P. State Universities Act. 4. On the receipt of the representation, the petitioner was given a notice by the Chancellor, respondent 1. He also called upon the petitioner to show cause why was his appointment as lecturer not liable to be quashed in exercise of his suo motu powers under S. 68 of the U. P. State Universities Act. By the impugned order dated 30th Mar., 1982, the Chancellor accepted the appointments on the first two posts and set aside the appointments on the remaining five posts, on the finding that the same had not been made after due advertisement and were in violation of S. 31 (10) of the Act. Section 31 (10) reads as under : "No selection for any appointment under this section shall be made except after advertisement of the vacancy in at least three issues of two newspapers having adequate circulation in U. P." 5. In the instant case, the advertisement was made only in respect of two vacancies. The aforesaid provision is mandatory and non-compliance of the same is grave. The object of making the aforesaid provision is not far to seek. It was made with a view to attract proper candidates and also to provide them equal opportunity. Equality of opportunity would be denied if the fact of vacancy of the post was not advertised. The use of "the" before the word "vacancy" in S. 31 (10) is indicative of the fact that all the vacancies desired to be filled up were to be advertised and without doing the same, no appointment could be made. It is the settled law that if a thing is provided to be done in a particular manner, that should be done in accordance with the same. In order to find out the intention of the legislature, the Court has to ascertain the object which the provision of law in question is to subserve and the context in which it is enacted. If the object of the Act is being defeated by non-compliance of the same, it has been regarded as mandatory. The object would be clearly defeated if vacancies in a University are permitted to be filled up without resorting to the procedure prescribed by S. 31(10). If the object of the Act is being defeated by non-compliance of the same, it has been regarded as mandatory. The object would be clearly defeated if vacancies in a University are permitted to be filled up without resorting to the procedure prescribed by S. 31(10). Considering the subject matter, the importance of the provision which has been disregarded, and the relation of the provision to the general object intended to be secured by S. 31 (10), we are of opinion that S. 31(10) is imperative. 6. The submission, however, made was that under Cl. 5 of the advertisement, the University was entitled to appoint more than two persons as lecturers inasmuch as though the number of seven appointments had not been specifically mentioned, but the same can be implied or read in Cl. 5. Clause 5 relied upon by the petitioner's learned counsel is one of the provisions made for the advertisement. This runs as under : "The University reserves the right to vary the number of vacancies under any category." 7. Counsel's argument was that the word "vary" would take within its ambit the cases of increasing or decreasing the number of vacancies, hence the University should be deemed to have complied with S. 31(10). We do not agree with this submission. Apart from the object of the provision made, the literal interpretation of the said clause would also not lead to the intendment which was sought to be implied in the aforesaid clause. By this clause, the University had intended to absolve itself of the liability which could arise on account of the appointments being made less than notified. Making of this provision was done with a view to retain or hold over the vacancies notified by this advertisement to a future date, if suitable candidates were not available. Lest any right may be claimed by a person who had applied and is not selected as against a vacancy advertised, this provision has been made. We are, therefore, of opinion that the submission made by the learned counsel is devoid of merit. 8. The meaning of the expression 'very' is to undergo change or alter, to differ, diverge of depart. This meaning coupled with the object behind Cl. 5 only means that the number of vacancies notified can be reduced. We are, therefore, of opinion that the submission made by the learned counsel is devoid of merit. 8. The meaning of the expression 'very' is to undergo change or alter, to differ, diverge of depart. This meaning coupled with the object behind Cl. 5 only means that the number of vacancies notified can be reduced. The settled law is that while interpreting one clause of a particular document the whole should be read, if that rule is applied, no other conclusion appears to be possible. It may, therefore, be not correct to include a case of increasing the number of vacancies within its ambit. 9. The requirement of making advertisement under S. 31 (10) was of a nature which could not be dispensed with. The advertisement had to be specifically made giving the number of vacancies to be filled up. The vacancies could not be filled up without notifying the same. In this case, we have noted above that not only on the representation made by respondent 3 that the appointments had been set aside, but also from the assertion made in the writ petition itself it appears that the petitioner had been given a notice by the Chancellor under S. 68 to show cause why his appointment made was not liable to be cancelled. That being so, it was not very material that the Chancellor interfered at the instance of respondent 3 who had been considered and was not selected. Moreover, this was the question falling exclusively within the powers of the Chancellor. Interference since has been legally done on the ground justified in law, we cannot quash the order of the Chancellor. The Chancellor is over all in charge of the working of the University and has the last say in a matter like the present. 10. Counsel for the petitioner also had raised an argument that since the Selection Committee, the decision of which has been challenged under S. 68 was not an authority for coming under the purview of S. 68, therefore, the Chancellor had no authority to interfere. However, subsequently, after seeing Sections 2 (17) and 2 (19) of the U. P. State Universities Act, counsel frankly conceded that the said point had no merit and was thus not sustainable. We hence need not elaborate it. 11. In the connected writ petition, the arguments made were the same as in the case of Dr. However, subsequently, after seeing Sections 2 (17) and 2 (19) of the U. P. State Universities Act, counsel frankly conceded that the said point had no merit and was thus not sustainable. We hence need not elaborate it. 11. In the connected writ petition, the arguments made were the same as in the case of Dr. R.C. Gupta, hence they need not be separately dealt with. 12. No other point was argued. 13. For the reasons given above, both the writ petitions are dismissed summarily.