M. C. Gupta v. University of Rajasthan (77) — 1989 DIGILAW 713 (RAJ)

S.C. AGRAWAL, J.—This writ petition relates to appointment on the post of Professor of Mathematics in the University of Rajasthan (hereinafter referred to as the University). 2. By advertisement No. 4/77, the University invited applications for appointment on various posts including the post of Professor of Mathematics in the University. Dr. M.C. Gupta, the petitioner in this writ petition, was at that time holding the post of Reader in the Department of Mathematics in the University. He submitted his application in pursuance of the said advertisement. A Selection Committee was constituted in accordance with the provisions of Section 4 of the Rajasthan Universities Teachers and Officers (Special Conditions of Service)Act,l974,for the purpose of making selection for the post of Professor in Mathematics. The said Selection Committee interviewed the applicants, including the petitioner, on 14.04.1978 and it recommended the name of Dr. N.D. Gautam for appointment on the post of Professor of Mathematics. The Selection Committee also prepared a reserve list wherein it recommended a panel of two names for appointment on the post of Professor in Mathematics. The name of the petitioner was the first among the said two names. The recommendations of the Selection Committee were considered by the Syndicate of the University, at its meeting held on 16.06.1978 and the Syndicate decided to appoint Dr. N.D. Gautam as Professor in Mathematics. In accordance with the said decision of the University Dr. N.D. Gautam was appointed as Professor in Mathematics on 16.06.1978 and he joined the said post on the same day. Subsequently a vacancy arose on the post of Professor of Mathematics on account of retirement of Professor G.C. Patni and the Syndicate of the University, in its meeting held on 31.08.1978, passed a resolution that the petitioner be appointed as Professor in the University Department of Mathematics in the consequential vacancy of Dr G.C. Patni. In accordance with the said resolution of the Syndicate the letter dated 3.10.1978 was issued by the Registrar of the University whereby the petitioner was appointed as Professor in Mathematics. The said appointment of the petitioner was on probation for two years. In pursuance of the said letter of appointment the petitioner joined the post of Professor in the Department of Mathematics of the University on 31.08.1978. The said appointment of the petitioner was on probation for two years. In pursuance of the said letter of appointment the petitioner joined the post of Professor in the Department of Mathematics of the University on 31.08.1978. It appears that some letters were received by the University from some persons wherein objections were raised with regard to the appointment of the petitioner on the post of Professor in the Department of Mathematics. The said letters were considered by the Syndicate at its meeting held on 3.10.1978. After considering the said letters the Syndicate, in the said meeting, decided that the appointment of the petitioner as Professor of Mathematics was not correctly made and the same should be cancelled. In accordance with the said resolution of the Syndicate, the Registrar of the University sent a letter (Ex.R/l), whereby the petitioner was informed that his appointment as Professor of Mathematics had been cancelled with effect from 3.10.1978 and that he had been reverted to the original post as Reader in the Department of Mathematics. Feeling aggrieved by the aforesaid order dated 3.10.1978 with regard to the cancellation of his appointment on the post of Professor in the Department of Mathematics, the petitioner has filed this writ petition wherein he has prayed that the resolution of the Syndicate dated 3.10.1978 cancelling the appointment of the petitioner be quashed and the petitioner be allowed to continue on the post of Professor in Mathematics. 3. The writ petition has been contested by the University and the reply has been filed on its behalf. The petitioner has filed a rejoinder to the said reply. 4. It may be mentioned that during the pendency of the writ petition the petitioner was re-appointed as Professor in Mathematics on 16.06.1979 and now he has also retired from service. The controversy in this writ petition is, therefore, confined only to the matter of payment of difference in the salary for the post of Professor in Mathematics and for the Reader in Mathematics for the period from 3.10.1978 to 16.06.1979. 5. The controversy in this writ petition is, therefore, confined only to the matter of payment of difference in the salary for the post of Professor in Mathematics and for the Reader in Mathematics for the period from 3.10.1978 to 16.06.1979. 5. Shri Maloo, the learned counsel for the petitioner has urged the following contentions in support of the writ petition : (i) The meeting of the Syndicate held on 3.10.1978 was not properly convened and, therefore, the resolution passed at the said meeting with regard to the cancellation of the appointment of the petitioner on the post of Professor in Mathematics is without authority of law. (ii) The resolution of the Syndicate dated 3.10.1978. whereby the appointment of the petitioner on the post of Professor in Mathematics has been cancelled, is based on the letters received from certain persons but no opportunity was afforded to the petitioner to make his submissions with regard to the objections raised in those letters relating to the appointment of the petitioner on the post of Professor in Mathematics. The decision of the Syndicate with regard to the cancellation of the appointment of the petitioner was thus taken in disregard of the principles of natural justice. 6. Shri Calla, the learned counsel for the University, has supported the action of the University. Shri Calla has also urged that this Court in exercise of its power under Article 226 of the Constitution should not issue a writ and set aside the resolution of the Syndicate dated 3.10.1978 because the setting aside of the said resolution would have the effect of restoring the resolution dated 31.08.1978 with regard to the appointment of the petitioner on the post of Professor in the Department of Mathematics which is illegal. 7. As regards the first contention relating to the convening of the meeting of the Syndicate on 3.10.1978 it may be stated that in Sub-section (3) of Section 13 of the University of Rajasthan Act, 1946 (hereinafter referred to as the Act) it is laid down that Vice-Chancellor shall have the power to convene meetings of the Senate, the Syndicate and the Academic Council, and joint meetings of faculties. At the relevant time Shri V.P. Tyagi was the Vice-Chancellor of the University. At the relevant time Shri V.P. Tyagi was the Vice-Chancellor of the University. On 2.09.1978, Registrar of the University had passed the following order :- "Shri V.P. Tyagi, Vice-Chancellor has been advised rest for a fortnight commencing from September 2, 1978 by the Doctor. Therefore, he shall not be attending office from September 2, 1978 to September 16, 1978 (both days inclusive). He has ordered that in his absence the work of the Vice-Chancellor be looked after by a Committee consisting of the following members:- 1. Prof. Daya Krishna — Chairman 2. Prof. S.Lokanathan 3. Prof. T.K.N. Unnithan 4. Prof. Iqbal Narain 5. Prof. R.K. Kaul." 8. By order dated 19.09.1978, which was issued in continuation of the earlier order dated 2.09.1978, it was directed that the members of the Committee working for the Vice-Chancellor shall continue to work till further orders. 9. Shri Maloo has urged that these orders dated 2.09.1978 and 19.09.1978 passed by the Vice-Chancellor were illegal and without authority of law in as much as Sub-section (7) of Section 12 of the Act an express provision has been made for carrying on the office of the Vice-Chancellor in case a temporary vacancy has occurred in the office of the Vice Chancellor by reason of leave, illness or otherwise and it has been provided that in such a case the Pro-Vice-Chancellor may carry on the office of the Vice-Chancellor and where there is no Pro-Vice-Chancellor or he is also temporarily absent the matter must be reported to the Chancellor by the Syndicate and the Chancellor can make such arrangement to carry on the office of the Vice-Chancellor as he may deem fit. The submission of Shri Maloo is that there was no Pro-Vice-Chancellor in the University at that time and, in view of the provisions contained in Sub-section (7) of Section 12, the Chancellor along was entitled to make suitable arrangement for carrying on the office of the Vice-Chancellor in the absence of Shri V.P. Tyagi and the Vice-Chancellor (Shri V.P. Tyagi) was not entitled to constitute a Committee for looking after the work of the Vice-Chancellor in his absence. In my view, there is considerable force in the aforesaid submission of Shri Maloo. In my view, there is considerable force in the aforesaid submission of Shri Maloo. Sub-section (7) of Section 12 of the Act prescribes as under :- " 12(7)—When a temporary vacancy in the office of the Vice-Chancellor occurs by reason of leave, iilness or otherwise, the Pro-Vice-Chancellor shall carry on the office of the Vice-Chancellor. Where, however, there is no Pro Vice-Chancellor or he is also temporarily absent, the Syndicate shall forthwith report the same to the Chancellor who shall make such arrangements for carrying on the office of Vice-Chancellor as he may deem fit." 10. The aforesaid provision has been considered by a Full Bench of this Court in Har Govind Pant Vs. Chancellor, University of Rajasthan (1). In that case it has been held as under : "The provision under Section 12 (7) envisages a temporary vacancy in the office of the Vice-Chancellor by reason of leave, illness or otherwise and vests the Chancellor with authority to make such arrangement, as he deem fit. The words "or otherwise" in the context, in which it appears, cannot be read as ejusdem generis. A temporary vacancy may occur by reason of leave or illness or of various other reasons. The matter is, therefore, left by and large by the use of the word "otherwise" and it is futile to contend that "resignation" is not covered by it". 11. This would mean that Section 12 (7) is very wide and comprehensive and covers all cases where a temporary vacancy occurs in the office of the Vice-Chancellor. From the order dated 2.09.1978 it appears that on account of medical advice the then Vice-Chancellor, Shri V.P. Tyagi, was not able to attend to his work as the Vice-Chancellor of the University. It was, therefore, a case where a temporary vacancy had occurred in the office of the Vice-Chancellor on account of the absence of Shri V.P. Tyagi for medical reeasons. In respect of the said temporary vacancy a suitable arrangement for carrying on the office of the Vice-Chancellor could be made only by the Chancellor under Sub-section (7) of Section 12 of the Act. In respect of the said temporary vacancy a suitable arrangement for carrying on the office of the Vice-Chancellor could be made only by the Chancellor under Sub-section (7) of Section 12 of the Act. The Vice-Chancellor was not competent to make any arrangement for carrying on the work of the Vice-Chancellor in his absence and, therefore, the order dated 2.09.1978 (which was continued by order dated 19.09.1978) whereby a Committee was constituted to lookafter the work of the Vice-Chancellor, in the absence of the then Vice-Chanceller Shri V.P. Tyagi, cannot be held to be valid and in accordance with law. 12. As noticed earlier under Section 13 (3) the meeting of the Syndicate could be convened by the Vice-Chancellor alone. Ordinance 31 also provides that the meetings of the Syndicate shall be held atleast once in two months as laid down in the Statutes, or at such times as the Vice-Chancellor may direct. Shri Calla, the learned counsel for the University has urged that direction of the Vice-Chancellor for holding a meeting of the Syndicate is required only in respect of a meeting of the Syndicate other than the meeting which is required to be held in once in two months and that for convening the meeting of the Syndicate which is required to be held once in two months a direction of the Vice Chancellor is not required and the same can be convened by the Registrar who acts as the Secretary of the Syndicate. I am unable to accept the said contention of Shri Calla. In view of Section 13 (3) of the Act all meetings of the Syndicate have to be convened by the Vice-Chancellor. The Registrar as Secretary of the Syndicate is not. competent to convene a meeting of the Syndicate on his own. In the present case it is not the case of the University that the meeting of the Syndicate held on 3.10.1978 had been convened by the then Vice-Chancellor, Shri V.P. Tyagi, before 2.09.1978. In the circumstances the only inference that can be drawn is that the meeting of the Syndicate held on 3.10.1978 was convened by the Committee which was constituted under order dated 2.09.1978 to look after the work of the Vice-Chancellor, Shri V.P. Tyagi, in his absence. In the circumstances the only inference that can be drawn is that the meeting of the Syndicate held on 3.10.1978 was convened by the Committee which was constituted under order dated 2.09.1978 to look after the work of the Vice-Chancellor, Shri V.P. Tyagi, in his absence. Since, I am of the view that the said Committee had no existence in law the meeting of the Syndicate held on 3rd Oct. 1978 cannot be said to have been properly convened and the resolution passed at the said meeting for cancelling the appointment of the petitioner on the post of Professor in Mathematics cannot be held to be a valid resolution of the Syndicate. 13. As regards the second contention urged by Shri Maloo it may be mentioned that in the resolution (Ex.R/3) dated 3.10.1978 which was passed by the Syndicate for cancelling the appointment of the petitioner on the post of Professor in Mathematics, a reference has been made to letter dated 4.09.1978 received from Dr. B.L. [Saraf, Dean, Faculty of Science, letter dated 14.09.1978 received from Dr. Hari Singh, Member of the Syndicate and letter dated 18.09.1978 received from Dr. H.C. Bhartiya Member of the Syndicate, with regard to the appointment of the petitioner as Professor in the Department of Mathematics in the vacancy caused on account of retirement of Dr. G.C. Patni. After considering the said letters the Syndicate, in its resolution (Ex.R/3) dated 3.10.1978 has expressed its opinion on these matters pertaining to the validity of the appointment of the petitioner on the post of Professor in Mathematics on the basis of earlier resolution dated 31.08.1978 and in the light of the said opinion the Syndicate decided that the appointment of the petitioner on the post of Professor in Mathematics be cancelled. 14. Shri Maloo has urged that no opportunity was afforded to the petitioner by the Syndicate to make his submissions in respect of the objections raised against his appointment in the letters to which reference has been made in the resolution of the Syndicate and the petitioner was also not afforded an opportunity to make submissions on the points mentioned in the said resolution on the basis of which the Syndicate felt that the appointment of the petitioner on the post of Professor in Mathematics was not valid. Shri Maloo has submitted that if such an opportunity has been afforded to the petitioner before the Syndicate took a decision with regard to the cancellation of the appointment of the petitioner on the post of Professor in Mathematics, the petitioner would have satisfied the Syndicate that there was no substance in these objections raised against his appointment and there was no infirmity in the said appointment. 15. There is no dispute that no opportunity was afforded to the petitioner to make his submission with regard to the objections that were raised against his appointment on the post of Professor in Mathematics and which were taken into consideration by the Syndicate in its meeting held on 3.10.1978 before the said meeting was held. It appears that after the petitioner has filed this writ petition and the show cause notice issued by this Court in the writ petition had been served on the respondents, a notice (Ex.R/4) dated 27th Oct. 1978 was sent by the Registrar of the University to the petitioner whereby the petitioner was required to show cause why the Syndicate should not confirm its decision dated 3.10.1978 to cancel the petitioners appointment on the post of Professor in Mathematics with effect from 3.10.1978 at its next meeting when the minutes of the earlier are placed before the Syndicate for confirmation. The petitioner was required to send his reply within seven days of the said communication. Shri Maloo has submitted that since this letter was addressed during the pendency of the writ petition and the matter was already subjudice before this Court the petitioner did not submit any reply to the said letter. Shri Calla, the learned counsel for the University, on the other hand has urged that even if no opportunity was afforded to the petitioner to put forward any point of view before the Syndicate passed the resolution dated 3.10.1978 such an opportunity was afforded to the petitioner after the passing of the said resolution and that the petitioner failed to avail the same and therefore, the petitioner cannot be permitted to challenge the validity of the resolution dated 3.10.1978 on the ground that it was passed in violation of the principles of natural justice. The submission of Shri Calla is that furnishing of a post decisional opportunity should be regarded as sufficient compliance with the principles of natural justice in the facts and circumstances of the present case. In my view this contention of Shri Calla cannot be accepted. The resolution (Ex.R/3) dated 3.10.1978, passed by the Syndicate indicates that for the purpose of taking a decision to cancel the appointment of the petitioner on the post of Professor in Mathematics, the Syndicate has taken into account the three letters dated 4.09.1978, 14.09.1978 and 18.09.1978 received from Dr. B.L. Saraf, Dr. Hari Singh and Dr. S.C. Bhatia respectively. Taking into consideration the said letters the Syndicate formed the following opinion:- "1) The so called "reserve list" on the basis of which the appointment of Dr. M.C. Gupta was made by the Syndicate at its meeting held on 31.08.1978, cannot be termed as reserve list because it does not bear the signatures of all the members of the Selection Committee as is the usual practice. 2) The letter of recommendation also does not assign priorities to the names of candidates mentioned by them, and, 3) Even if it is deemed as a reserve list in view of the earlier Res. No. 3 of the Syndicate held on 1.08.1978, it has to be treated as infructions as soon as the duly selected candidate joined as Professor in the department." It was in the fitness of the things that the petitioner should have been supplied with the copies of the letters mentioned above which were placed before the Syndicate so that the petitioner could submit his explanation with regard to the objections that were raised against the appointment of the petitioner on the post of Professor in Mathematics and the said explanation should also have been placed before the Syndicate when it considered the said matter. As a result of the denial of such an opportunity to the petitioner before the Syndicate considered the matter of cancellation of his appointment on the post of Professor in Mathematics on 3.10.1978 the petitioner has suffered serious prejudice. The show cause notice which was sent to the petitioner on 27.10.1978 does not have the effect of rectifying this serious infirmity. The show cause notice which was sent to the petitioner on 27.10.1978 does not have the effect of rectifying this serious infirmity. In the first place, there is nothing to show that the said letter dated 27.10.1978 was issued as per directions of the Syndicate and the Syndicate had expressed a desire to reconsider the matter of appointment of the petitioner on the post of Professor in Mathematics, in the light of the submission that may be made by the petitioner. The said letter appears to have been issued by the Registrar of the University on his own initiative under the expectation that the Syndicate may reconsider the matter at the stage of confirming the minutes of the meeting dated 3.10.1978. Normally when the minutes are placed before the Syndicate for confirmation what is to be seen is whether they contain a correct record of the proceedings of the earlier meeting. As to whether the decision taken at the earlier meetings should be reconsidered or not is a matter lying within the discretion of the Syndicate only and there is nothing to show that the Syndicate had expressed any intention to reconsider its decision taken on 3.10.1978. Moreover no purpose would have been served by the petitioner submitting his explanation in reply to the show cause notice dated 27.10.1978 since the said notice was issued after the petitioner had approached this Court by filing this writ petition and this Court had passed an order dated 17.10.1978 directing issuance of notice to the respondents requiring them to show cause why the writ petition may not be admitted. In response to the said notice a reply has also been filed on behalf of the University on 20.11.1978 justifying the decision of the Syndicate taken at its meeting held on 3rd October 1978. In these circumstances, it cannot be said that any useful purpose would have been served by the petitioner availing himself of the opportunity which was belatedly afforded to him by notice dated 27.10.1978 during the pendency of the writ petition. 16. I may now examine the submission of Shri Calla that this Court should not interfere with the resolution of the Syndicate dated 3.10.1978 in exercise of its jurisdiction under Article 226 of the Constitution. 16. I may now examine the submission of Shri Calla that this Court should not interfere with the resolution of the Syndicate dated 3.10.1978 in exercise of its jurisdiction under Article 226 of the Constitution. There can be no dispute with the proposition of law that this Court in exercise of its jurisdiction under Article 226 of the Constitution would not issue a writ to quash an order which may have the effect of restoring an order which is illegal or without jurisdiction. The submission of Shri Calla is that if the resolution of the Syndicate dated 3.10.1978 cancelling the appointment of the petitioner is set aside by this Court, the effect would be to restore the resolution of the Syndicate dated 31.08.1978 with regard to the appointment of the petitioner on the post of Professor in Mathematics and that the said resolution of the Syndicate dated 31.08.1978 was illegal and, therefore, this Court should not interfere with the resolution dated 3.10.1978 in exercise of its jurisdiction under Article 226 of the Constitution. In view of the aforesaid submission Shri Calla it is necessary to examine whether the resolution dated 31.08.1978 passed by the Syndicate with regard to the appointment of the petitioner on the post of Professor in Mathematics can be held to be illegal. In this regard Shri Calla has invited my attention to the resolution (Ex.R/2) dated 1.08.1976, whereby the Syndicate had decided that whenever a Selection Committee recommends a Reserve List of candidates and the recommendation is accepted by the Syndicate the said reserve list shall be effective for a period persons duly appointed joins and it shall in no case remain valid for a period exceeding six months. Shri Calla has submitted that in view of the said resolution the reserve list which was prepared for the post of Professor in Mathematics by the Selection Committee which met on 14.04.1978 ceased to be effective on 16.06.1978 when Dr. N. D. Gautam, who had been appointed on the basis of the recommendations of the Selection Committee, joined the post of Professor in Mathematics and on 31.08.1978, when the Syndicate passed the resolution appointing the petitioner on the post of Professor in Mathematics, the said reserve list was not in operation and no appointment could be made on the post of Professor in Mathematics on the basis of the said reserve list. In other words the submission of Shri Calla is that since the Syndicate, in passing the resolution dated 31.08.1978, acted in disregard of its earlier resolution dated 1.08.1976, the subsequent resolution of Syndicate dated 31.08.1978 should be held to be illegal. The aforesaid contention of Shri Calla has the effect of elavating the resolution of the Syndicate dated 1.08.1976 to the status of law having the effect of invalidating a subsequent resolution of the Syndicate passed in disregard of the same. 1 am unable to accept this contention of Shri Calla. In my view the resolution of the Syndicate dated 1.08.1976 was in the nature of an executive decision of the Syndicate and it was open to the Syndicate to take a decision in disregard of the said earlier decision. A decision of the Syndicate taken in disregard of such an executive decision cannot be held to be illegal. Shri Calla has invited my attention to the decision of a learned Single Judge of this Court in Jagdish Kumar Sinha Vs. State of Rajasthan (2) wherein the action of the Chief Justice of this Court taken in disregard of an earlier resolution of the Full Court was held to be illegal and this Court refused to interfere under Article 226 of the Constitution because it would have had the effect of restoring the said illegal order. The submission of Shri Calla is that in this case an action taken in disregard of a resolution was held to be illegal and that similarly in the present case the action of the Syndicate in passing the resolution dated 31.08.1978 was taken in disregard of the earlier resolution of the Syndicate dated 1.08.1976 and for the same reason it should be held that the action of the Syndicate in passing the resolution dated 31.08.1978 was illegal. In my view, the aforesaid decision in Jagdish Kumar Singhs case (supra) cannot be applied to the facts of the present case because in that case the action of the Chief Justice was taken in disregard of the resolution passed by the Full Court, which is a body higher than the Chief Justice, whereas in the present case, I am concerned with the action of the Syndicate taken in disregard of its earlier resolution. The body which passed the earlier resolution can take a decision superseding its earlier decision contained in the previous resolution. The body which passed the earlier resolution can take a decision superseding its earlier decision contained in the previous resolution. Such supersession can be express or implied. By taking decision at its meeting held on 31.08.1978, even if it be assumed that it was in disregard of its earlier resolution dated 1.08.1976, the Syndicate cannot be said to have been acted illegally because the effect of the resolution dated 31.08.1978 would be to supersede the earlier resolution dated 1.08.1976 to that extent. 17. Moreover, in the present case, I find that before the passing of the resolution dated 31.08.1978, the resolution dated 1.08.1976 had been expressly superseded by the Syndicate by resolution dated 10.07.1978 whereby the Syndicate had decided that (i) every Selection Committee may draw a reserve list of suitable candidates upto a number not exceeding 50% of the number of posts for which the vacancies exist and place them in order of priority; (ii) that the reserve list so drawn has to be treated valid upto six months from the date of approval by the Syndicate of the recommendations of the Selection Committee; and (iii) on the vacancies caused within the cadre during six months of the approval of the recommendations, the candidates found suitable and placed in reserve list be appointed in the order of priority given by the Selection Committee. In view of the aforesaid resolution dated 10.07.1978,(The reserve list prepared by the Selection Committee for the post of Professor in Mathematics was valid for a period of six months and appointment on the basis of the said reserve list could be made against a vacancy occuring during the said period of six months. The recommendations of the Selection Committee were approved by the Syndicate on 16.06.1978 and one vacancy had arisen on account of retirement of Dr. G. C. Patni within a period of six months of such approval. Appointment on the said post, thus falling vacant, could, therefore, be made from the resorve list prepared by the Selection Committee. It cannot, therefore, be said that the resolution of the Syndicate dated 31.08.1978, with regard to the appointment of the petitioner on the post of Professor in Mathematics was illegal. The objection raised by Shri Calla to the issuance of a writ to quash the resolution of the Syndicate dated 3.10.1978 cannot, therefore, be sustained. 18. It cannot, therefore, be said that the resolution of the Syndicate dated 31.08.1978, with regard to the appointment of the petitioner on the post of Professor in Mathematics was illegal. The objection raised by Shri Calla to the issuance of a writ to quash the resolution of the Syndicate dated 3.10.1978 cannot, therefore, be sustained. 18. In the result the writ petition is allowed the resolution (Ex.R/3) dated 3.10.1978 passed by the Syndicate of the University and the order (Ex.R/l) dated 3.10.1978 issued by the Registrar, on the basis of the said resolution, cancelling the appointment of the petitioner on the post of Professor in Mathematics are set aside and it is declared that the petitioner continued to hold the psot of Professor in Mathematics on which he was appointed by order dated 31.08.1978, on the basis of the resolution of the Syndicate dated 31st August 1978. The petitioner is entitled to be paid the difference in the pay for the post of Professor in Mathematics and the post of Reader in Mathematics for the period from 3.10.1978 to 16.06.1979. The said payment should be made to the petitioner within a period of two months. The parties are left to bear their own costs in this writ petition.