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1991 DIGILAW 1351 (ALL)

Arindam Chatterji v. Chancellor University of Allahabad Raj Bhavan, Lucknow

1991-10-30

K.K.BIRLA, V.K.KHANNA

body1991
JUDGMENT V.K. Khanna, J. - According to the petitioners, for the three vacancies for the post of Reader in the English Department of the Allahabad University an advertisement was published by the University of Allahabad inviting applications for filling the aforesaid posts. The two petitioners besides other candidates, applied for the aforesaid posts. It may be mentioned that Dr. Lakshmi Raj Sharma and Dr. Madhusudan Prasad had also applied for being selected for the post of Reader in the English Department Interview by the Selection Committee took place on 30th August, 1989. The recommendation of the Selection Committee was to be considered by the Executive Council, which met on 9th Sept. 1989. The two petitioners along with some other candidates had made a representation to the Executive Council pointing out certain illegalities in the holding of the selection. As the Executive Council did not take a decision on the recommendation of the Selection Committee within a period of four months from the date of the meeting, under the provisions of Section 31(9a) of the U.P. State Universities Act, 1973, the matter stood transferred to the Chancellor. According to petitioners, a representation was, therefore, made on 20- 11-1989 apprising the Chancellor of the illegalities made by the Selection Committee. The Chancellor, according to the petitioners, did not take any decision in the matter. In the meantime the State Government by U.P. Ordinance No. 11 of 1990 dated 9-3-1990 brought an amendment in Section 31(8a) of the Act which empowered the Chancellor to require the Executive Council to take a decision within such time allowed where the Executive Council without its fault failed to take a decision on the recommendation of the Selection Committee within a period of four months. The Chancellor returned all the matters before the Executive Council for its decision including the present matter which included the recommendation of the Selection Committee regarding appointment of Readers in the English Department of the Allahabad University. 2. It may be pertinent to note that before the Executive Council could meet to finally consider the recommendation of the Selection Committee, the petitioner filed writ petition for quashing the proceedings and recommendation of the Selection Committee. The aforesaid writ petition was dismissed as not pressed on 22nd June, 1990. 2. It may be pertinent to note that before the Executive Council could meet to finally consider the recommendation of the Selection Committee, the petitioner filed writ petition for quashing the proceedings and recommendation of the Selection Committee. The aforesaid writ petition was dismissed as not pressed on 22nd June, 1990. On 30th June, 1990 the meeting of the Executive Council was convened in which the recommendations of the Selection Committee were approved by the Executive Council. The newly impleaded respondents Dr. Lakshmi Raj Sharma and Dr. Madhusudan Prasad were, therefore, selected to the post of Reader in the English Department. The petitioners thereafter sent representation dated 29th Sept. 1990 to the Chancellor of the Allahabad University. According to the petitioners the aforesaid representation dated 29th Sept. 1990 was sent by registered post on 1st Oct. 1990 as 30th Sept. 1990 was a Sunday challenging the validity of the recommendation dated 30th August, 1989 of the Selection Committee which was subsequently approved by a resolution of the Executive Council of the Allahabad University. The aforesaid representation made by the petitioners under section 68 of the Act has been rejected by the Chancellor on the ground that the same has been filed after the expiry of the period of limitation provided under Section 68 of the Act and, therefore, was not acceptable. It is this order of the Chancellor which has been challenged in the present writ petition. 3. Learned counsel appearing for the petitioners has urged that the Chancellor erred in taking the limitation from 30th August, 1989 i.e. the date of the meeting of the Selection Committee and the limitation should have been counted either from the date of the meeting of the Executive Council in which the recommendation of the Selection Committee was accepted i.e. 30th June 1990 or 29th July, 1990 when the Executive Council had confirmed the minutes of the meeting dated 30th June, 1990. It has been urged that it the limitation is counted from either of the two dates, the representations made by the petitioners was within time and could not be rejected on the ground that it was filed beyond time, prescribed under Section 68 of the Act. 4. It has been urged that it the limitation is counted from either of the two dates, the representations made by the petitioners was within time and could not be rejected on the ground that it was filed beyond time, prescribed under Section 68 of the Act. 4. Learned counsel appearing on behalf of the respondents have, however, urged that the Chancellor has rightly taken the limitation from the date on which the Selection Committee had held its meeting i.e. 30th August, 1989 inasmuch as in the representation which has been filed by the petitioners they had only challenged the recommendations made by the Selection Committee. It has been urged that the petitioner having filed writ petition and the same having been dismissed could not challenge the proceedings of the Selection Committee in the present writ petition as no permission had been sought for filing a second writ petition. Learned counsel appearing for the respondent has also urged that according to the petitioner the constitution of the Selection Committee has been challenged by filing a representation to the Chancellor by the petitioners and thus the constitution of the Selection Committee could not be challenged by filing another representation to the Chancellor afterwards. In the end it has been urged that the petitioner had not come with clean hands inasmuch as he had not impleaded the persons who had been selected and had also misstated facts in connection with filing of the earlier writ petition and this court should not exercise its extraordinary jurisdiction. 5. The very first question which falls for determination in this case is as to whether the representation made by the petitioner is only limited to the validity of the constitution of the Selection Committee and the decision taken by it on 30th August, 1989 or it is also against the decision of the Executive Council in which the recommendation of the Selection Committee have been accepted. A copy of the representation which has been made to the Chancellor has been annexed as Annexure 9 to the writ petition. The opening part of the aforesaid representation runs as follows : - "We, the undersigned were applicants for the post of Readers in the English Department, University of Allahabad. The Selection Committee for these posts met on 30-8-1989 and made certain recommendations. The opening part of the aforesaid representation runs as follows : - "We, the undersigned were applicants for the post of Readers in the English Department, University of Allahabad. The Selection Committee for these posts met on 30-8-1989 and made certain recommendations. These recommendations were, then, subsequently, approved by a resolution of the Executive Council of the Allahabad University confirmed on 29-7-1990." The representation thereafter goes on to challenge the constitution of the Selection Committee and also the norms followed by the Selection Committee on the ground that it has flouted all norms of seniority and academic excellence for the post of Reader in English. It has also been stated that of the 14 members present, including the Vice Chancellor, the Vice Chancellor did not vote, one other member abstained and six members clearly recorded their dissent in approving the recommendation of Mr. Madhusudan Prasad for the post of Reader in English. 6. If we read the representation as a whole it becomes clear that the recommendation which had been made by the Selection Committee which met on 30th August, 1989 and which had been approved by the Executive Council by its resolution and which has also been confirmed by the Executive Council had been challenged before the Chancellor. 7. We have now to consider the effect of filing of writ petition in which the constitution of the Selection Committee had been challenged by the petitioner. In our opinion, the aforesaid writ petition was dismissed as not pressed before the Executive Council met to consider the recommendations of the Selection Committee. In the present writ petition the Chancellor had not rejected the representation made by the petitioners on merit but the same has been rejected on the ground that it is belated. In the present writ petition even though the Counsel appearing for the respondents have tried to justify the stand of the Selection Committee on merits, we do not propose to adjudicate the aforesaid question as, in our opinion, the aforesaid question will be adjudicated on merits by the Chancellor in case the representation is within time. In the present writ petition even though the Counsel appearing for the respondents have tried to justify the stand of the Selection Committee on merits, we do not propose to adjudicate the aforesaid question as, in our opinion, the aforesaid question will be adjudicated on merits by the Chancellor in case the representation is within time. The dismissal of the earlier petition on the ground that it was-not pressed by the petitioner does not, therefore, debar the petitioners from challenging the order of the Chancellor which has only adjudicated on the question that the representation made by the petitioners had not been made within time prescribed by section 68 of the Act. 8. The crucial question which then arises for determination is as to what would be the starting point of the limitation for considering as to whether the representation made by the petitioner had been filed within time. Section 68 of the U.P. State Universities Act runs as follows : - "68. 8. The crucial question which then arises for determination is as to what would be the starting point of the limitation for considering as to whether the representation made by the petitioner had been filed within time. Section 68 of the U.P. State Universities Act runs as follows : - "68. REFERENCE TO THE CHANCELLOR : If any question arises whether any person has been duly elected or appointed as, or is entitled to be member of any authority or other body of the University, or whether any decision of any authority or officer of the University (including any question as to the validity of a Statute, Ordinance or Regulation, not being a Statute or Ordinance made or approved by the State Government or by the Chancellor) is in conformity with this Act or the Statute or the Ordinance made thereunder the matter shall be referred to the Chancellor and the decision of the Chancellor thereon shall be final : Provided that no reference under this section shall be made :- (a) more than three months after the date when the question could have been raised for the first time; (b) by any person other than an authority or officer of the University or a person aggrieved; Provided further that the Chancellor may in exceptional circumstances :- (a) act suo moto or entertain a reference after the expiry of the period mentioned in the preceding proviso; (b) where the matter referred relates to a dispute about the election, and the eligibility of the person so elected is in doubt, pass such order of stay as he thinks just and expedient." It is clear from the first proviso that no reference under this section shall be made more than 3 months after the date when the question could have been raised for the first time. The Selection Committee had met on 30th August, 1989. Selection Committee admittedly is an authority under the Act and against its decision if it becomes known or any other ground including the constitution of the selection committee a representation would, therefore, lie under section 68. According to the petitioners a representation had been made to the Chancellor. However, in the counter-affidavit filed on behalf of the Chancellor it has been stated that no such representation exists on the record of the Chancellor. According to the petitioners a representation had been made to the Chancellor. However, in the counter-affidavit filed on behalf of the Chancellor it has been stated that no such representation exists on the record of the Chancellor. The question, therefore, arises as to whether a representation at a later stage after the executive council had accepted the recommendation of the Selection Committee can be made. 9. From the provisions of the State Universities Act it is clear that the appointments have to be made by the Executive Council and it is Executive Council which has to accept the recommendations of the Selection Committee. The Petitioners thus get a right to make a representation after Executive Council takes a decision accepting the recommendations of the Selection Committee. 10. The question which has now to be considered is as to whether the limitation under Section 68(a) of the Act would start from the date when the Executive Council had approved the recommendation of the Selection Committee i.e. 30th June, 1990 or 29th July, 1990 when the Executive Council had confirmed the minutes of the meetings dated 30th June, 1990. 11. The law on the subject of confirmation of minutes an has been stated by Frank Shackleton in the `Law and Practice of Meetings' as follows : "Decisions once arrived at do not need confirmation, and the practice adopted by some authorities of "confirming" minutes has no' legal significance. The word "confirm" sometimes means "verify"; it is commonly used in that sense at meetings of public bodies, who confirm the minutes of their last meeting, not meaning thereby that they give them force, but merely that they declare them accurate." There is no provision in the Statute itself that the resolution of the Executive Council approving the recommendations of the Selection Committee will be effective from the date of confirmation of the minutes. In the absence of any such statutory provisions, we are of the opinion that the decision of the Executive Council became enforceable from the date when the Executive Council passed the resolution accepting the recommendations of the Selection Committee and not from the date of the subsequent resolution of the Executive Council, when the minutes of the earlier meetings were confirmed. The date from which the limitation prescribed under Section 68(a) would start would thus be the date when the Executive Council for the first time passed the resolution accepting the recommendations of the Selection Committee i.e. 30th June, 1990. It has now to be seen as to whether the representation made by the petitioners dated 29th Sept. 1990 was entertainable under Section 68 of the Act. The petitioners in the writ petition have alleged that they have made the representation on 29th Sept. 1990, which fact is borne out from the date of the representation. However, it has been stated that as 30th Sept. 1990 happened to be a Sunday, the same was despatched by registered post on 1st Oct. 1990. In the impugned order the Chancellor has taken the date of representation as 29th Sept. 1990 and starting point of limitation as 30th August, 1989, i.e. the date on which the Selection Committee had sent its recommendations. As we have held above the representation was both against the recommendation of the Selection Committee and the decision of the Executive Council, the limitation could not be counted from the date on which the Selection Committee had made the recommendations are should have been counted from the date on which the Executive Council had taken the decision i.e. 30th June, 1990. The Executive Council had taken the decision on 30th June, 1990 and thus under Section 68(a) of the Act the dispute at the earliest could have been raised on 1st July, 1990. Under Section 68(1) of the Act the dispute could be raised within 3 months after the date when the question could have been raised for the first time. As the Executive Council had taken decision on 30th June, 1990, the dispute could have been raised on the next date i.e. 1st July, 1990 for the first time. Now reference could not be entertained more than 3 months after 1st July, 1990. 1st July, 1990 therefore, has also to be excluded and the limitation has to be counted from 2nd July, 1990. The Chancellor himself has taken the date of petitioners' representation as Sept. 29, 1990. If that be so, the question had been raised well within limitation. The representation made to the Chancellor therefore could not be thrown on ground that it was belated. 12. The Chancellor himself has taken the date of petitioners' representation as Sept. 29, 1990. If that be so, the question had been raised well within limitation. The representation made to the Chancellor therefore could not be thrown on ground that it was belated. 12. On the facts and circumstances of this case we are of the opinion that there are no such facts which disentitled the petitioners from invoking our jurisdiction under Article 226 of the Constitution of India. For the reasons stated above the present writ petition succeeds and is allowed. The order of the Chancellor dated 15th Nov. 1990 is quashed. The representation made by the petitioners will now be on merits. The stay order granted by this court is discharged. However, looking to the facts and circumstances of the case the parties shall bear their own costs.