Research › Browse › Judgment

Allahabad High Court · body

1987 DIGILAW 597 (ALL)

S. P. Singh v. Chancellor, Meerut Vishwvidyalaya Rajya Bhawan, Lucknow

1987-05-18

N.N.MITHAL

body1987
JUDGMENT N. N. Mithal, J.-An order dated 12-7-1985 passed by the Chancellor, Meerut University is under challenge in this writ petition. 2. The petitioner was earlier serving as lecturer of Military Science in D. A. V. College, Azamgarh affiliated to the Gorakhpur University. He applied for the post of Lecturer in military service in S. S. V. Degree College, Hapur in pursuance of an advertisement of March, 1981. After being recommended by the Selection Committee, his appointment was approved by the Managing Committee, which was also accepted by the Vice-Chancellor on 1-9-1981. Respondent No. 3 whose name was placed at serial No. 2 on the panel by the Selection Committee, made a representation against the petitioners selection which was, however, rejected by the Chancellor on 27-8-1982. His plea that the petitioner lacked requisite minimum qualification as prescribed by First Statute of Meerut University, was repelled. Respondent No. 3 then filed a writ petition before the High Court and a Division Bench of this Court accepted his plea and allowed the petition on 4-9-1984. Since reported in 1984 U.P. Local Bodies and Educational Cases Page 808 - Ram Autar v. Chancellor, Meerut University and others. While interpreting Statute 11.13(8) of the Meerut University it was held by this Court that the words affiliated college in the said Sub-Clauses refers those colleges which were affiliated to Meerut University. Since the petitioner's teaching experience related to a College affiliated to Gorakhpur University he could not take any advantage of that exception. After quashing the Chancellors order it was directed by the High Court that the representation made by the petitioner should be decided afresh in the light of the observations made. 3. In this maimer the matter again cane up before the Chancellor but in the meantime Sub-Clauses 8 of Statute 11.13 itself was amended retrospectively from 9-9-1980 by a notification dated 31-5-1985. As a result of this a amendment the scope of relation of minimum qualification - was enlarged so as to apply to confirmed teachers of Colleges affiliated to the Universities other than Meerut University also. As a result of this a amendment the scope of relation of minimum qualification - was enlarged so as to apply to confirmed teachers of Colleges affiliated to the Universities other than Meerut University also. The petitioner sent a supplementary representation drawing the attention of the Chancellor to the said amendment and prayed that in view of this amendment his teaching experience as a lecturer of an affiliated College under the Gorakhpur University should be taken into consideration, A half hearted attempt was made to urge that supplementary representing had not been received by the Chancellor, before the pending representation of respondent No. 3 was decided but the evidence filed here leaves no room for doubt that the same had reached the Chancellor before the order was passed. The Chancellor, however, allowed the original representation on 12-7-1985 in the light of the view taken by the High Court without considering the effect of the amendment. By a separate order dated 17-7-1985 petitioner's supplementary representation was also rejected. This order dated 17-7-1985 was not initially challenged and it is submitted that no effective relief can be granted if this order stands. It may however, be pointed out that the present writ petition was got reported in the High Court on 17-7-1985 and was admitted by the court on 18-7-1985. There was thus no occasion for the petitioner to challenge the later order in the petition. 4. The crux of the dispute raised here is whether the retrospective amendment made in the Spicule 11.13(8) could ensure in favour of the petitioner when once the parties right have been finally determined by the High Court. Further more, it is urged, that even if advantage of the amendment was available to him, could be claim any right without first establishing that he possessed the requisite qualification of a lecturer when so appointed according to them prevailing statutes of the Gorakhpur University. 5. It would not be out of place to mention here that since U.P. Higher Education Services Commission has now been constituted, the question whether the rights of the parties would in any way affected by it was fairly and candidly conceded by Sri Jagdish Swarup, learned Counsel appearing for respondent No. 3 that the Act would not apply. 6. Coming back now to the main controversy. 6. Coming back now to the main controversy. Statute 11.13 of the First Statute of Meerut University, 1977 prescribed the requisite minimum qualifications for appointment of a teacher in the Faculty of Arts, which includes the subject of Military Science also. The prescribed minimum qualification being. (i) M. Phil, or a recognised degree beyond Masters level or and, (ii) a consistently good academic record with at least 1st or high second class Masters degree or..................... 7. In 1981 the Sub-Clause (8) was in these terms. "Where a confirmed teacher of an affiliated college having at least five years teaching experience who fulfilled the qualifications prescribed in the Statutes or Ordinance of the University at the time of his initial appointment to the post of a lecturer in that college, is a candidate for the post of a lecturer in any other affiliated college, or is after retrenchment from the college where he served, a candidate for the post of lecturer in the same or any other affiliated college, the qualification laid down in this Statute shall not be insisted upon in this respect." 8. It may be pointed out that the parties are not as issue on the question that the petitioner did not possess the requisite minimum qualifications laid down for appointment of a lecturer in Military Science according to Statute 11.13(1). Therefore, his selection could only be saved if it was found to be covered by Sub-Clause (8) of that statute. As seen earlier, the ground on which the earlier writ petition was allowed was that the petitioner did not possess five year teaching experience in an affiliated college of Meerut University notwithstanding his teaching experience in a college affiliated to Gorakhpur University. This was the sole basis for the decision report in 1984 - UPLBEC 808 (supra) for holding that the petitioner lacked the prescribed qualification. By means of a notification dated 31-5-iy85, the Governor in exercise of his powers under Section 50 of the U.P. State Universities Act, 1973 substantially amended Sub-Clause (8) of Statute 11.13. This was the sole basis for the decision report in 1984 - UPLBEC 808 (supra) for holding that the petitioner lacked the prescribed qualification. By means of a notification dated 31-5-iy85, the Governor in exercise of his powers under Section 50 of the U.P. State Universities Act, 1973 substantially amended Sub-Clause (8) of Statute 11.13. A copy of the aforesaid notification is Annexure-2 to the writ petition according to which Statute 11.13 (8) now reads as under: "(8) Where a confirmed teacher of an associated or affiliated college of this or any other University, having at least five years teaching experience, who fulfilled the qualifications prescribed in the Statutes or Ordinances of this or, as the case may be, of any other University at the time of his initial appointment to the post of lecturer in that college, is a candidate to the post of lecturer in any affiliated College of this University, or after retrenchment from any college of this or any other University where he served, a candidate for the post of lecturer in the some or and other affiliated college of this University, the qualifications laid down in these Statutes snail not be insisted upon in this respect and he will be deemed to possess the requisite qualifications for such appointment." 9. A perusal of Statute 11.13 will show that Sub-Clause (8) thereof is only in the nature of Exception which grants relaxation as regards minimum qualifications in case of those teachers who had sufficient teaching experience. As a matter of fact while drawing up these Statutes an effort seems to have been made to maintain proper balance while laying down minimum higher academic qualifications on the one hand and also to give some weightage to those who had rich teaching experience on the other. With a large number of new Universities coming up there has been a spurt in vacancies also with the result that teachers under one University began to apply for jobs in other colleges or Universities. It appears that probably it was with a view to meet this situation, that Sub-Clause (8) was originally devised. After the decision of this Court in Writ Petition No. 5421 of 1982, 1984 UPLBEC 808, the whole completion changed and then it seems to have dawned upon the Government that Sub-Clause (8) had only a very limited scope. It appears that probably it was with a view to meet this situation, that Sub-Clause (8) was originally devised. After the decision of this Court in Writ Petition No. 5421 of 1982, 1984 UPLBEC 808, the whole completion changed and then it seems to have dawned upon the Government that Sub-Clause (8) had only a very limited scope. It was then that notification dated 31-5-1985 was issued to enlarge its scope so as to cover cases of those teachers also who were employed under various other Universities. 10. As mentioned earlier, this Court, while interpreting Statute 11.13 (8) held that it applied to those lecturers only who had requisite teaching experience in one of the affiliated Colleges of Meerut University. The amended provision, however, enlarges it scope so as to include confirmed teacher of an associates or a affiliated college of this or any other University also. If the amended provision be held to be applicable to the petitioner as well, then his case needed to be considered in the light of the amended provision. Sri Jagdish Swarup for the respondent, however, has raised two serious objections to this. According to him firstly the petitioner is bound by the earlier decision and in view of that no advantage can be taken by him of any subsequent amendment and, secondly the amendment itself is mala fide, arbitrary and a result of colourable exercise of power. 11. It has remained undisputed by the parties that after the decision in Writ Petition No. 5421 of 1982, referred to earlier the petitioner had tried to assail the decision before the Supreme Court also but special leave to appeal was refused and the petition was dismissed. A photostat copy of the said order is C. A. - l to the respondents affidavit dated 9-8-1985 on the record. The decision in the said writ petition, therefore, became final between the parties and is no longer open to challenge by them. The submission of the petitioner's learned Counsel is that on account of an amendment Sub-Clause 8 of Statute 11.13 the legal position has vitally changed and now the petitioner was also entitled for being considered for the post and difficulty, if any, in his qualification stood rectified on account of the said amendment. The submission of the petitioner's learned Counsel is that on account of an amendment Sub-Clause 8 of Statute 11.13 the legal position has vitally changed and now the petitioner was also entitled for being considered for the post and difficulty, if any, in his qualification stood rectified on account of the said amendment. For the opposite-parties this argument is met by the submission that although the amendment has been made retrospective in operation yet it only applies to those cases which arise subsequent to the said amendment. It cannot, however, apply to a case which his already became concluded because there was nothing in the amending Act to revalidate the acts already done or performed or to nullify the effect of any order of the court. There is much force in this submission. When once rights of the parties have been finally determined and become concluded they cannot revive only because a retrospective amendment has been made unless there was something in the amending Act which itself provided for effacing the decision which have become final between the parties. 12. According to the rules or interpretation of Statutes if the legislature intends to revalidate something with retrospective effect it is usually prefixed by expression to the effect that notwithstanding any decree or order to the contrary the amended Act will have the effect from the date specified therein. Unfortunately for the petitioner no such saving has been made in the notification of 31-5-1985 in question. In the result, despite the fact that the amended provisions Act have been made retrospective it cannot give any advantage to the petitioner as the result of accepted of this would be to nullify the decision of this Court and affirmed by the Supreme Court, even in the absence of any provisions like the one mentioned above. 13. It is urged that the petitioner had already left his services at Azamgarh and if he is deprived of the present job he will be left nowhere and it will result in serious civil consequences. This may be true, but merely because there would be hardship to the petitioner the legal position cannot be clarified, Once it is found that after the decision of the Supreme Court rights of the parties had been crystallised the amending provision cannot give a new lease of life to those rights unless the legislature on intended specifically. This may be true, but merely because there would be hardship to the petitioner the legal position cannot be clarified, Once it is found that after the decision of the Supreme Court rights of the parties had been crystallised the amending provision cannot give a new lease of life to those rights unless the legislature on intended specifically. Unfortunately, for the petitioner this has not done or intended to be done by the legislature and the cannot substitute its will. 14. In the result I find no force in this petition and the same is accordingly dismissed. However, there will be no order as to costs.