JUDGMENT A. N. Varma, J. - The post of Professor of Bio-Chemistry in the Allahabad University is the bone of contention between two learned teachers arrayed in this case as the petitioner and the respondent No. 7. Both were aspirants for this post and made applications for the same in response to an advertisement issued by the Registrar of the Allahabad University (`the University' hereafter). 2. The petitioner is aggrieved by the selection and appointment of Drop Shukla, the seventh respondent, to the said post. By the impugned order dated March 14, 1985, the Chancellor of the University approved the recommendation made by the Selection Committee in favour of Drop Shukla and directed that appointment to the post be made in accordance with the recommendation of the Selection Committee. This order was passed by the Chancellor in the purported exercise of powers under the proviso to sub- section (8)(a) to S. 31 of the U.P. State Universities Act, 1973. 3. Broadly, the first and the main contention of the learned counsel for the petitioner was that the Chancellor had no power to pronounce on the recommendation of the Selection Committee as the proviso to sub-section (8)(a) of S. 31 of the Act was not attracted to the facts of the case. We will elaborate the submission a little later. First the essential facts. 4. The petitioner was already serving as the Acting Head of the Department by virtue of being the senior most Reader, when the post was advertised on October 24, 1983. Both the petitioner as well as Dr. Shukla applied for the post. The Selection Committee constituted for the purpose comprised : (1) Dr. T. Pati, Dean of the Faculty, (2) Prof Lal of Delhi, Expert, (3) Prof Agarwal of Delhi, Expert, (4) Prof Sharma of Roorkee, Expert, 5. The Selection Committee met on October 16, 1984 to consider the relative merits of the candidates who had applied for the post and drew a panel of the following persons for appointment to the post in order of preference indicated below : (1) Dr. Onkar Prakash Shukla, (2) Dr. Mahavir Mohan Simlot, (3) Dr. A.N. Malviya. 6. The name of, the petitioner was, however, not included panel drawn by the Selection Committee. 7. Onkar Prakash Shukla, (2) Dr. Mahavir Mohan Simlot, (3) Dr. A.N. Malviya. 6. The name of, the petitioner was, however, not included panel drawn by the Selection Committee. 7. At this point it will be necessary to refer to the history of the post including the creation thereof, its sanction and withdrawal by the State Government alternately from time to time. This will have some relevance to the points raised at the Bar. On August, 1976 the University Grants Commission sanctioned the post of Professor in Bio-Chemistry in this University. The Academic Council of the University approved the creation of the same by its resolution dated November 12, 1976. The Executive Council also accorded its approval to the creation of the post vide its resolution dated December 31, 1976. On February 18, 1977 the State Government sanctioned the creation of the post under the Fifth Five Year Plan and directed that the same be filled up by March 31, 1981. Attempt was made to fill up the post but not finding any suitable candidate for the post, the Selection Committee which met on February 26, 1979 did not recommend the name of any candidate. The Executive Council then passed a resolution on October 27, 1979 for re advertising the post. On March 31, 1981 the sanction accorded by the State Government lapsed. The University Grants Commission thereupon revived the post in the Sixth Five Year Plan vide its letter dated February 18, 1982. The State Government by its G.O. dated November 23, 1982 sanctioned the filling of the post by March 31, 1983. However, the Selection Committee could not meet before 31, 1983 and the sanction of the post lapsed. The post was again advertised on October 24, 1983 in anticipation of the formal sanction by the State Government for extension of the last date for filling the post. By G.O. dated September 1, 1984, the State Government again accorded its sanction for the post and directed that the post be filled by March 31, 1985. Thereafter on October 16, 1984 the Selection Committee met and submitted its panel as mentioned hereinabove. 8. Having noticed the fluctuating fortunes of the post alternating between the sanction, withdrawal and revival thereof at regular intervals, we revert to the proceedings before the Executive Council in regard to the recommendation of the Selection Committee in favour of Dr. Shukla. Thereafter on October 16, 1984 the Selection Committee met and submitted its panel as mentioned hereinabove. 8. Having noticed the fluctuating fortunes of the post alternating between the sanction, withdrawal and revival thereof at regular intervals, we revert to the proceedings before the Executive Council in regard to the recommendation of the Selection Committee in favour of Dr. Shukla. The matter was included for the first time in the agenda of the meeting of the Executive Council convened for October 21, 1984. We are reproducing below the minutes of the meeting of that date pertaining to this item : "172. Before the Council took consideration of the recommendation of the various selection committee for appointment of Professors/Readers/Lecturers, the Vice Chancellor Pointed out that the statutes with regard to appointment of teachers under Personal Promotion Scheme had not yet been received from the State Government though it was expected to be received by this item. Therefore, the Council decided that the recommendations of the Selection Committees for appointment of Lecturers may be considered and the recommendations of the Selection Committees for the posts of Professors and Readers be postponed and taken up at the next meeting." 9. The next meeting of the Executive Council was held on November 8, 1984. On this date again, the consideration of the report of the Selection Committee dated October 16, 1984 was deferred without assigning any reason. The minutes are as follows : "217. The Council postponed consideration of the report of the Selection Committee, under the Faculty of Science dated 16th October, 1984 for the appointment of Professor in Bio-Chemistry for the next meeting." 10. On December, 12, 1984, however, the State Government vide G.O. of date withdrew its sanction accorded earlier. No reasons were, however, assigned in the G.O. for this action. The Executive Council met on December 13, 1984 and dropped consideration of the report of the Selection Committee with the following resolution: "241 With reference to Executive Council resolution No. 217 dated 8th November, 1984 the Council dropped consideration of the report of the Selection Committee under the faulty of Science, dated 16th October, 1984 for the appointment of Professor of Bio-Chemistry as the State Government vide its letter No. 5336/15(15)-2(13/82, dated 12th December 1984 (reproduced below) has cancelled the post of Professor in Bio-Chemistry." 11. The phenomenon of sanction of the post, later its withdrawal followed by revival thereof seems to have been unending. The G.O. dated December 12, 1984 was not the last order on the subject. The Government again woke up and issued yet another order dated February 19, 1985 withdrawing the order dated December 12, 1984. By its latest order dated February 19, 1985 the State Government revived the post and directed that it will lapse if it is not filled by March 31, 1985. 12. The Executive Council having shelved the matter by its resolution dated December 13, 1984 and allowed it to remain under the carpet for more than four months, the Registrar forwarded the entire proceedings of the Selection Committee to the Chancellor on February 21, 1985 in terms of the proviso to sub-section (8)(a) of S. 31 of the Act. The proviso lays down that on the expiry of four months the matter shall stand referred to the Chancellor. The Chancellor thereupon passed the impugned order on March 14, 1985 accepting the recommendation of the Selection Committee in favour of the Dr. Shukla and directing his appointment. 13. It is in this backdrop that we revert to the points canvassed at the Bar in support of the petition. The main contention urged by the learned counsel was that the sanction of the post having been cancelled by the State Government on December 12, 1984, there was hardly any occasion for the Executive Council to consider the recommendation of the Selection Committee. It was submitted that in this view it could not be said that the Executive Council has omitted or failed to take decision within the meaning of the proviso to sub-section (8)(a). The proviso is attracted, it was urged, only where the Executive Council omits to take a decision in the matter (within 4 months) of the meeting of the Selection Committee. It has no application where, as here, the Executive Council is prevented for any reason from considering the recommendation of the Selection Committee. 14. Having given the contention our careful and anxious consideration, we regret our inability to accept the same. In order to appreciate the contention it will be convenient to have a look at S. 31(8)(x) of the Act. It provides : "(8)(a). 14. Having given the contention our careful and anxious consideration, we regret our inability to accept the same. In order to appreciate the contention it will be convenient to have a look at S. 31(8)(x) of the Act. It provides : "(8)(a). In the case of appointment of a teacher of the University, if the Executive Council does not agree with the recommendation made by the Selection Committee, the Executive Council shall refer the matter to the Chancellor along with the reasons of such disagreement, and his decision shall he final : Provided that if the Executive Council does not take a decision on the recommendations of the Selection Committee within a period of four months from the date of the meeting of such Committee, then also the matter shall stand referred to the Chancellor, and his decision shall he final." 15. The language of the statute is explicit and unambiguous. The proviso simply states : "the Executive Council does not take a decision......" (Emphasis added) will be seen that the proviso would at once he attracted if the Executive Council 'does not take a decision' that is, though free to take decision it omits to do so. The only possible exception would perhaps be where the Executive Council is prevented or prohibited from taking any decision on the recommendation of the Selection Committee. To our mind, for attracting the proviso it would be enough that the Executive Council does not, take a decision, that is it omits to do so. 16. In the present case there was no such bar or prohibition operating against the Executive Council which might have prevented it from. considering the matter. Indeed, on at least two dates, i.e., on October 21, 1984 and November 8, 1984, the matter was specifically taken up by the Executive Council but it chose not to take any decision in the matter. On both these dates the Executive Council was perfectly free to Consider the recommendations but it deferred the item. It voluntarily close not to consider the matter throughout the period of four months in question. The reason why it did not do so is not, to our mind, relevant in view of the plain language of the proviso. On both these dates the Executive Council was perfectly free to Consider the recommendations but it deferred the item. It voluntarily close not to consider the matter throughout the period of four months in question. The reason why it did not do so is not, to our mind, relevant in view of the plain language of the proviso. Sri G.N. Verma, learned counsel for the petitioner, however, vehemently contended that the Executive Council was entitled to have under the statute 4 months' time for taking a decision and that period, he argued, was curtailed because the Government had cancelled its sanction on December 12, 1984 as a result of which the Executive Council had to shelve the matter vide its resolution no. 241 dated December 13, 1984. The Executive Council could not, it was argued, hence be said to have omitted to take a decision in the matter within four months. 17. We are unable to agree. The Executive Council was fully aware of the history of the post and of the phenomenon of the State Government according sanction to the post and later withdrawing the same and again reviving the post periodically. It was also aware that the post had been created by the University Grants Commission and was revived vide its letter dated February 18, 1982 addressed to the Registrar stating that the Commission had agreed to fill up the post approved to the University during the Fifth Plan period in the Sixth Plan (1980-85). Further by its order dated September 12, 1984 the State Government had already sanctioned the filling of the post by March 31, 1985 though this order was subsequently cancelled on December 12, 1984. The Executive Committee should have taken notice of these facts and considered the recommendation of the Selection Committee and expressed its views within the period of four months in the hope and anticipation that the post might be revived. It is another matter that the appointment to the post would have had to be kept in abeyance till the sanction came from the State Govt. At any rate, there was no prohibition operating against the Executive Council. Yet it allowed the period of 4 months to lapse. It should have been aware of its consequences. 18. It is another matter that the appointment to the post would have had to be kept in abeyance till the sanction came from the State Govt. At any rate, there was no prohibition operating against the Executive Council. Yet it allowed the period of 4 months to lapse. It should have been aware of its consequences. 18. Be that as it may, the Executive Council did not as a matter of fact take a decision on the recommendation of the Selection Committee. Whether it had reasons not to consider the matter after December 12, 1984 is an altogether different matter. The fact remains that the Executive Council did not take a decision in the matter and it was not prevented or barred from taking a decision within 4 months. This was sufficient to attract the application of the proviso. 19. To support his contention Sri G.N. Verma placed strong reliance on a decision of this Court in the case of Vinod Kumar Anand v. Dr. A.D. Sharma, reported in 1989 All WC 880. This decision is clearly distinguishable. The Bench was concerned with a situation where the Chancellor himself had in exercise of his powers under S. 68 forbidden the Executive Council from taking a decision on the recommendation of the Selection Committee for a temporary period. The Bench held that the period during which the injunction issued by the Chancellor was in operation has to be excluded in computing the period of 4 months within the meaning of the proviso to sub-section (8)(a). In the present case, there was no such prohibition or bar operating against the Executive Council. The decision cited is hence of little assistance in the present case. 20. In view of the foregoing discussion, his Court holds that proviso to S. (8)(a) was fully attracted to the facts of the present case. We also think that if the Executive Council had any grievance on account of not having been allowed the full period of 4 months for the consideration of the matter, it could represent to the Chancellor to remit the matter back to it. There is nothing to indicate that it did so. The Executive Council is arrayed in this petition as a respondent has not taken the position that it was illegally deprived of the privilege of expressing its views on the merits of the recommendations of the Selection Committee. There is nothing to indicate that it did so. The Executive Council is arrayed in this petition as a respondent has not taken the position that it was illegally deprived of the privilege of expressing its views on the merits of the recommendations of the Selection Committee. This is an additional reason why we are not persuaded to interfere with the decision of the Chancellor. 21. That takes us to the next submission of the learned counsel which was that at the time of advertisement of the vacancy, the post did not have the requisite sanction of the State Government. Sri Verma submitted that a post cannot be advertised except against an existing vacancy. Section 31(10) of the Act was pressed in aid by the learned counsel in support of his argument. The submission must be rejected on more than one ground. In the first place, the petitioner himself applied for that post in response to the advertisement and even appeared before the Selection Committee. He cannot hence be heard to raise such an objection. In the second place, Section 31(10) does not prohibit the process ,of selection being set in motion in anticipation of a vacancy. 22. Lastly, learned counsel submitted that withdrawal of the sanction of the post on December 12, 1984 and the subsequent revival of the post on February 19, 1985 was part of a design to get the matter transferred to the Chancellor under S. 31(8)(a). He argued that it was all a part of a conspiracy conceived in concert between the Vice Chancellor and the State Government in order to benefit Dr. Shukla who belonged to the same community as the then Vice-Chancellor. 23. We have given the submission our anxious consideration but we do not find that the material existing on the record justifies the allegation of malafides made against the respondents. The impugned order has been passed by the Chancellor in the exercise of powers under S. 31(8)(a). The Chancellor's decision is founded on the recommendation of the Selection Committee which comprised several experts. We have found nothing to suspect the impartiality of the experts. It may also be added that the Selection Committee is not constituted by the Vice-Chancellor. The Vice-Chancellor merely convenes the meeting. We cannot in this state of evidence (or the lack of it) sustain the plea of malafides. 24. We have found nothing to suspect the impartiality of the experts. It may also be added that the Selection Committee is not constituted by the Vice-Chancellor. The Vice-Chancellor merely convenes the meeting. We cannot in this state of evidence (or the lack of it) sustain the plea of malafides. 24. To sum up, the proviso to S. 31(8)(a) was fully attracted. There was no illegality or impropriety in the selection and appointment of Dr. O.P. Shukla. He was placed on the top of the panel of candidates recommended for the post. 25. In the premise, the petition fails and is dismissed. But we make no order as to costs. The interim orders are discharged.