Vipin Agarwal v. University of Allahabad — 1997 DIGILAW 390 (ALL)

JUDGMENT : Palok Basu, J. An advertisement was got published by Allahabad University (In some newspapers, it is shown as 30th January and February, 1995) inviting applications from the eligible candidates for selection to the posts of Professors, Readers and Lecturers, is under challenge in the aforementioned writ petitions. Since the question involved in these writ petitions, are identical, at the request of the learned Counsel for the parties, these petitions have been connected and heard together and are being disposed of by a common judgment and order. 2. Some of the questions raised in the petitions go to the root of the matter concerning the justification for the advertisement as it exists. Nonetheless, the Hon'ble Supreme Court's decision seems to cover a large part of the field and leave very narrow lane for this Court to travel in between and, therefore, what is to be decided is how far and how much the said narrow lane can be travelled. 3. At the very outset, it should be noted that in the case of State of Uttar Pradesh Vs. Dr. Dina Nath Shukla and another, (1997) 9 SCC 662 , the directions of the Supreme Court are : "The law is declared accordingly. The Vice-Chancellor would work out the details, make fresh advertisement and have the selection done in accordance with law and appoint merits made accordingly. The directions issued by the High Court are modified accordingly." Incidentally, this ease has also considered the same advertisement dated 30th January, 1995, which is the subject matter of decision in this bunch of writ petitions. The principal question canvassed for and against in these writ petitions is whether the provisions of U.P. Public Services (Reservation of Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short the Act No. 4 of 1994) will be applied to the selection for the Post of Professors, Readers and Lecturers in the University of Allahabad, which still in the recent past was renowned as the Oxford of the East. 4. Before going into the questions canvassed and strenuously argued, from either side one aspect need be kept in mind that Article 141 of the Constitution of India says that the law declared by the. Supreme Court shall be binding on the Courts within the territory of India. 5. 4. Before going into the questions canvassed and strenuously argued, from either side one aspect need be kept in mind that Article 141 of the Constitution of India says that the law declared by the. Supreme Court shall be binding on the Courts within the territory of India. 5. Keeping in view the aforesaid constitutional provisions as the main backdrop of the arguments advanced by the learned Counsel for the parties, the question to be decided is whether the aforesaid Act No. 4 of 1994 will be applicable to the Slate Universities in U.P. concerning all the Posts of Professors, Readers and Lecturers or there is scope for limiting lis applicability to any of the three categories of teachers in the University. 6. On behalf of the Petitioners. Sri K. N. Tripathi assisted by Sri Shailendra, Sri L.P. Naithani assisted by Sri V.S. Shukla, Sri S. C. Budhwar assisted by Sri U.K. Singh and Sri Rahul Sripat have been heard at substantial length in this bunch of petitions. 7. On behalf of the Allahabad University, Sri R. N. Singh. Senior-Advocate, assisted by Sri A. P. Shahi and Sri P. S. Baghel have been heard in detail. The cause of the State has been espoused by Sri R. K. Saxena, learned standing counsel. 8. Dr Vipin Agarwal prayed that the advertisement No. 1/95 published on 30.1.1995 be quashed and Respondents be commanded not to give effect to the said advertisement. Further, mandamus should go to the Respondents not to reserve technical posts in science and technology in pursuance of the provisions contained in Act No. 4 of 1994, and further reservation formulated through Act No. 4 of 1994 he not applied to the Posts of Readers and Professors. 9. Dr Han Prakash and others have made a similar prayer only adding (hat even for the Post of Lecturers also, reservation may not be made applicable. Similarly, Dr. Ram Gopal and others pray that the advertisement published on 1.2.1995 (which is the same as detailed above) be not given effect to and mandamus should go commanding the Respondents not to proceed with the selection for the Post of Professors, Readers and Lecturers in the University. 10. Dr. Similarly, Dr. Ram Gopal and others pray that the advertisement published on 1.2.1995 (which is the same as detailed above) be not given effect to and mandamus should go commanding the Respondents not to proceed with the selection for the Post of Professors, Readers and Lecturers in the University. 10. Dr. M. C. Chattopadhyay and others have, however, prayed that not only the aforementioned advertisement be quashed but the Government Order dated 23.3.1994 (Annexure 4) to the writ petition) and the Government Order dated 15.10.1994 (Annexure 7 to the writ petition) be also quashed and Respondents be commanded to readvertise the Posts of Lecturers, Readers and Professors keeping in view the provisions contained in U.P. State Universities Act, 1973 (for short the University Act), as well as the first Statute and Ordinance applicable in the University of Allahabad. There is further prayer in the writ petition that the decision of the Lucknow Bench in the case of Dr. Ram Niwas Pandey v. State of U.P. 1996 (3) UPLBEC 1869 , should be directed to be followed by the Respondents. Lastly, Dr. Shiv Sagar and others have prayed that the aforesaid advertisement as also advertisement No. 6/95 be quashed and mandamus should issue directing the Respondents not to make the provisions contained in Act No. 4 of 1994 applicable in the matter of selection to the Posts of Lecturers, Readers and Professors not only of the Allahabad University but to Degree Colleges and affiliated colleges of the State Universities. 11. It may be mentioned here that the learned Counsel for the Petitioners strenuously argued that the provisions of University Grant Commission Act should be kept in mind in order to safeguard the higher standard of education in the Universities. In this connection, it was contended that even the Central Government notification dated 13.5.1994, which is Annexure 3 to the writ petition of Dr. Hari Prakash, reservation has been made permissible in the post of lowest grade in group A. Learned Counsel agreed that group A was permitted only for Lecturer to be included in the policy of reservation as per declaration of the Central Government. It was, thus, contended that even though existence of the provisions in Act No. 4 of 1994 as well as the State Universities Act, the reservation will not apply to the Post of Reader and Professor. 12. It was, thus, contended that even though existence of the provisions in Act No. 4 of 1994 as well as the State Universities Act, the reservation will not apply to the Post of Reader and Professor. 12. It was further contended that as per the entry 66 read with other relevant entries in the Union list, Higher Education should be taken to be a matter permitting legislation only by the Central Government. In this connection, emphasis was laid on entry 25 of the concurrent list which permitted the education as a topic on which the State can also legislate. On the basis of combined reading of these two provisions, it was argued that Act No. 4 is not applicable for reservation in respect of any post at the University level. In this very connection, it should be pointed out that great emphasis was laid on the provisions of the University Act, particularly Sections 31 and 31A in order to argue that there is no scope for Act No. 4 of 1994 to be attracted to the selection of the Professors, Readers and Lecturers in the University so long as there is no amendment brought in the University Act just as was done by bringing Section 31A therein. In this connection, strong reliance was placed on the decision of the Supreme Court in Dr Bal Krishna Agarwal Vs. State of U.P. and Others, (1995) 1 SCALE 116 , and Dr. Rashmi Srivastava and Dr. B.D. Srivastava Vs. Vikram University and others, (1995) 3 SCC 653 . 13. It was emphasised on behalf of the Petitioners that definition of the public post as it exists in Act No. 4 of 1994 should by no stretch of imagination embrace the post of Professor, Reader and Lecturer of the State Universities and, therefore, the advertisement following the principle of reservation envisaged therein must be quashed. To be true to the argument of the learned Counsel for the Petitioners, it must also be mentioned that the learned Counsel has wisely contended that the provisions in the University Act will not make it permissible for the State to create a parallel Selection Committee other than the one envisaged by the aforementioned Section 31 of the University Act. 14. 14. It may also be mentioned here that Sri Rahul Sripat has strongly contended that just because the State Government has issued certain directions by way of G.O., it was not permissible to have roster even in the Posts of Professor and Reader. It is because the Selection Committee could not be other than the one which was provided by the Act. Sri Shailender has likewise said that the posts of Professor, Reader and Lecturer in the Allahabad University are higher posts in the University, it should be categorised as higher speciality posts and should not be normally equated with clerical job. 15. It was emphasised that the Professors and the teachers of the University particularly Allahabad University have been held in greatest esteem by the Society if not in the country itself. Therefore, the distinction which the law permits should be maintained. 16. Sri K. N. Tripathi, Sri L. P. Naithani as well as Sri S. C. Budhwar in this very connection have strongly argued that in Indra Sawhney case, Supreme Court has specifically observed that "the reservation should not be advisable concerning the Post of Professor." Therefore, they have said if the dictum laid down in the case of Indra Sawhney's case is allowed in pith and substance, the Professor atleast stands definitely on different footing than any other teacher and the staff of the University. 17. Sri R. N. Singh as well as Sri Bhagel have refuted all the arguments of the learned Counsel for the Petitioners and as a sheet-anchor relied upon the Supreme Court's decision not only in the case of State of U.P. v. D.N. Shukla (supra) but also in the three other cases. On the basis of the authority of the Supreme Court, this Court was reminded of what Article 141 laid down and then on the strength of the Full Bench decision of the Karnataka High Court in Govind Naik v. West Patent Press Co. AIR 1980 Karn 892 it is contended that no reference is necessary to the decision of this Court in order to find out what has been laid down and what has not been laid down by the High Courts and the decisions of the Supreme Court must be taken on their face value. AIR 1980 Karn 892 it is contended that no reference is necessary to the decision of this Court in order to find out what has been laid down and what has not been laid down by the High Courts and the decisions of the Supreme Court must be taken on their face value. To be true to R. N. Singh, he said that there is no method by which this Court can even segregate the Professors from the clutches of the onerous provisions of the Act No. 4 of 1994. Reliance has been pleaded on the decisions of the Supreme Court which are taken up one by one hereinafter. 18. In the case of State of U.P. v. Dr. D. N. Shukla (supra) the observation that: 14. Thus, it could be seen that if the subject wise recruitment is adopted in each service or post in each cadre in each faculty, discipline, specialty or super speciality, it would not only be clear to the candidates who seek recruitment but also there would not be an overlapping in application of the rule of reservation to the service or posts as specified and made applicable by Section 3 of the Act. 14...For achieving the said object, the Vice-Chancellor who is responsible authority u/s 4 to enforce the Act, would ensure that single posts in each category are clubbed since admittedly all the posts in each of the categories of Professors, Readers or Lecturers carry the same scale of pay. Therefore, their fusion is constitutional and permissible. The Vice-Chancellor should apply the rule of rotation and roster as envisaged under Sub-section (5) of Section 3. The advertisements are required to be issued so that the reserved and the general candidates would apply for consideration of their claims for recruitment in accordance therewith. 16. The law is declared accordingly.--The Vice-chancellor would work out the details, make fresh advertisement and have the selection done in accordance with law and appointments made accordingly. The directions issued by the High Court are modified accordingly. 19. It may be mentioned here that a Division Bench of this Court hold that since the "single post" could not be grouped together, therefore, the Government Order dated 19.4.1994 was quashed. It is against this order of the Court that the State had gone up in appeal and then the aforesaid law was declared by the Supreme Court. 20. 19. It may be mentioned here that a Division Bench of this Court hold that since the "single post" could not be grouped together, therefore, the Government Order dated 19.4.1994 was quashed. It is against this order of the Court that the State had gone up in appeal and then the aforesaid law was declared by the Supreme Court. 20. It may further be added that Dr. D. N. Shukla was a Lecturer in the department of Botany and had applied for the Post of Reader pursuant to the advertisement dated 30.1.1994 in the said department. In other words, Dr. D. N. Shukla case was dealing directly with the matter of Readers and Lecturers and not the Professors. 21. In Civil Appeal No. 16988 of 1996 arising out of SLP No. 4312 of 1996, Hon'ble Supreme Court considered the decision of this Court in Dr. Anand Prakash Mishra and Another Vs. Chancellor, University of Allahabad and Others, (1996) AWC 396 Supp. In this case, a Division Bench of this Court held that action of the Vice-Chancellor of the Allahabad University in not issuing the appointment letters to the Petitioners inspite of the order of the Chancellor dated 6th June, 1995 was illegal, inasmuch as on the facts of the case the provisions of U.P. Act No. 4 of 1994 were not attracted. Therefore, a mandamus was issued by this Court requiring the University and the Vice-chancellor to comply with the direction of the Chancellor and appointment letters were directed to be issued to the Petitioners for the posts of Reader in the department of Chemistry in the University of Allahabad. Rs. 5,000 special costs were also imposed. The Supreme Court allowing the appeal of the Vice-Chancellor of the University against the aforesaid judgment of the Division Bench of this Court, held as under: It is, thus, settled law that the process of selection must be in accordance with the law existing as on the date of selection. Keeping candidate in the waiting list does not confer any vested right in his favour much less indefeasible right. ... We are unable to agree with the learned Counsel. It is settled legal position that Legislature is competent to make law with restrospective effect. The Act was applied to existing vacancies as on the date the Act came into force and the process of selection was not started as on that date. ... We are unable to agree with the learned Counsel. It is settled legal position that Legislature is competent to make law with restrospective effect. The Act was applied to existing vacancies as on the date the Act came into force and the process of selection was not started as on that date. ...In the face of Section 3 read with Section 15(3) of the Act, any process for selection initiated after the commencement of the Act, be in conformity with the provisions of the Act, Necessarily, the vacancies existing as on that date shall require to be filled up applying Sub-section (1) of Section 3 of the Act and the selection should be made in accordance therewith. It is settled legal position that the mandamus cannot be issued to violate the law or to act in violation of the law. In this case, the direction issued by the High Court tantamount to a direction to the Appellant to appoint the Respondents as per the order issued by the Chancellor, in violation of the Act. The mandamus was, therefore, clearly illegal. The incumbent Vice-Chancellor cannot be found fault with the implementation of the Act as per directions contained in it and the comments and the strictures made against the Appellants by the High Court are unwarrant and uncalled for. 22. On the strength of the observation of the Supreme Court, it was argued and perhaps rightly that Act No. 4 of 1994 was made applicable to the selection in the State Universities. 23. It may now be pointed out that after having noted the observations of the Supreme Court in Dr. D. N. Shukla's case as well as Dr. Anand Prakash Mishra's case (supra), it is impossible for this Court, to decide the issue again which have already been decided by the Supreme Court. It is further pointed out that the advertisement was not challenged before the Supreme Court in Dr. D. N. Shukla's case. Thus, it is impossible to accede to the request of the learned Counsel for the Petitioners that despite the decision in Dr. D. N. Shukla's case and Dr. Anand Prakash Misra's ease, it should be held that Act No. 4 of 1994 will not apply to the selection of Readers and Lecturers of the University. 24. D. N. Shukla's case. Thus, it is impossible to accede to the request of the learned Counsel for the Petitioners that despite the decision in Dr. D. N. Shukla's case and Dr. Anand Prakash Misra's ease, it should be held that Act No. 4 of 1994 will not apply to the selection of Readers and Lecturers of the University. 24. Now the question has yet to be answered as to whether the Professors shall be or can be said to be included within the aforesaid two decisions of the Supreme Court. It need not be emphasised that one who is a Professor is much more revered than a Lecturer and a Reader. The position of a Professor of a University in the hierarchy of teachers community is invincible. The regard and the command which the Professors have, is not only based upon their educational experience or teaching experience but also on the fact that they shape the destiny of the nation in the sense that they prepare the youth studying in different Universities for shouldering responsibility of scientific development and literary advancement of the nation. Therefore, there is scope for making distinction in the case of a Professor, Reader and Lecturer. 25. There is a detailed decision of our court (Lucknow Bench) which was dealing with the matter of the Professor alone. In Dr. Ram Niwas Pandey v. State of U.P. (supra), a Division Bench considered the advertisement No. 5/1993 relating to the three Posts of Professor, one in the department of Sanskrit, one in the Mediaeval and Modern History and one in the department of Applied Economics. After a detailed discussion, the Division Bench relying on the observations of the Supreme Court in Indra Sawhny v. Union of India, 1992 Supp. (3) SCC 217, in Chakradhar Paswan Vs. State of Bihar and Ors, (1988) 2 SCC 214 ; Dr. Suresh Chandra Verma and others Vs. The Chancellor, Nagpur University and others, (1990) 4 SCC 55 , and Dr. D.N. Shukla v. State of U.P. and Ors. 1996 (2) ESC All 136, came to the conclusion that the provisions of Act No. 4 of 1994, were not applicable to the selection of teachers in the State Universities. 26. Suresh Chandra Verma and others Vs. The Chancellor, Nagpur University and others, (1990) 4 SCC 55 , and Dr. D.N. Shukla v. State of U.P. and Ors. 1996 (2) ESC All 136, came to the conclusion that the provisions of Act No. 4 of 1994, were not applicable to the selection of teachers in the State Universities. 26. It may, however, be mentioned here that while considering the matter of Professors, it was held by a Division Bench that "Thus, on the basis of aforesaid discussion, if is held that (he provisions of U.P. Public Services/ Reservation for Scheduled Caste/Scheduled Tribes and Other Backward (Classes) Act, 1994 (U.P. Act No. 4 of 1994) shall not apply to the selection for the Post of Professors, Readers and Lecturers under the U.P. State Universities Act." 27. This matter was taken to the Hon'ble Supreme Court through SLP No. (Civil) 20623-20626/96. While dismissing the S.L.P., the Apex Court recorded its opinion as under: In the facts and circumstances of this case relating to the appointment of the Respondent-Professors, we do not find any explanation can be taken to the view taken by the High Court. Dismissed. (The word 'explanation' in the order appears to be a typographical error which may be read as 'exception' All capital typing and emphasis, by this Court.) 28. This order dismissing the SLP is dated 6.12.1996 whereas the judgment of the Supreme Court in Dr. Anand Prakash Misra is dated 16.12.1996 and in the ease of Dr. Dina Nath Shukla, it is dated 31.1.1997. 29. As mentioned above, the Supreme Court observed that the matter of "PROFESSORS" was involved in Dr. Ram Niwas Pandey's ease and it is further clear that having noticed this fact specifically, dismissed the SLP It does not thus require repetition that the decision in Dr. Rama Niwas Pandey as propounded by the Lucknow Bench of this Court, has been upheld on the reasoning that it dealt with the advertisement for the posits of Professors. Thus, the three decisions of the Supreme Court (in Dr. D. N. Shukla, Dr. Anand Prakash Misra and Dr. Rama Niwas Pandey), when read together, in the background of its decision in Indira Sawhney's case as quoted above, make the distinction between Professors on the one hand and Readers and Lecturers on the other, specific and pronounced. Therefore, Dr. Thus, the three decisions of the Supreme Court (in Dr. D. N. Shukla, Dr. Anand Prakash Misra and Dr. Rama Niwas Pandey), when read together, in the background of its decision in Indira Sawhney's case as quoted above, make the distinction between Professors on the one hand and Readers and Lecturers on the other, specific and pronounced. Therefore, Dr. Rama Niwas Pandey's case has to be confined to Professors while the case of Dr. Dina Nath Shukla and Dr. Anand Prakash Misra have to be confined to Readers and Lecturers only. 30. It may again be mentioned that in the judgment of the Lucknow Bench in Dr. Rama Nawas Pandey's case, there is no mention of the decision of the Hon'ble Supreme Court in Dr. Anand Prakash Mishra and Dr. D. N. Shukla (both supra). The attention of the Court was drawn by the learned Counsel for the Petitioners to yet another decision of the Lucknow Bench in Writ Petition No. 1016 of 1994 dated 20.3.1997. In this decision, the Division Bench has reiterated the earlier view in Dr. Rama Niwas Pandey's case-' it is hereby declared that the U.P. Public Services (Reservation of S.C., S.T. and O.B.C.) Act, 1994 and the roster notified u/s 3 (5) of the said Act would not apply to the Universities governed by the U.P. State University's Act." It may be mentioned that even this decision dated 20.3.1997 does not refer to any of the three decisions of the Supreme Court noticed in the preceding paragraph. Learned Counsel for the Petitioner wanted that this Court should either follow the reasoning in the judgment dated 20.3.1997 and in Dr. Rama Nawas Pandey's case (supra), or refer the matter to Full Bench. As already adverted to above, the law laid down by the Supreme Court in the case of Dr. D. N. Shukla and Dr. Anand Prakash Misra leaves no scope for this Court to hold that the provisions of U.P. Act No. 4 of 1994 will not be applicable for selection to the Post of Readers and Lecturers in the State Universities. Likewise, for the aforesaid reasons, the provisions of U.P. Act No. 4 of 1994 are not attracted to the Posts of 'Professors' in the Universities administered through the State University's Act. Likewise, for the aforesaid reasons, the provisions of U.P. Act No. 4 of 1994 are not attracted to the Posts of 'Professors' in the Universities administered through the State University's Act. To repeat, the law laid down by the Supreme Court of India is binding on all Courts, hence he field being occupied by the Supreme Court's verdict, the submission that the matter may go to Full Bench is totally misplaced. In Dr. D. N. Shukla's case, which was a mattes- relating to Readers and Lecturers, it has been held by the Supreme Court that the posts have to be readvertised by the University as Roster and Rotation were necessary. The provisions contained in U.P. Act No. 4 of 1994 and the relevant G.O. will thus apply for the Posts of Readers and Lecturers subject to the roster and rotation as directed by the Supreme Court. 31. In view of the aforesaid discussion, the impugned advertisements No. 1/95 and 6/95 are quashed in so far as they relate to the posts of Professors. These two advertisement Nos. 1/95 and 6/95 are directed to be pursued in so far as they relate to the vacant Posts of Lecturers and Readers as on today subject to applying roster and rotation under the Government Order dated 19.4.1995 as modified by the Hon'ble Supreme Court in State of U.P. v. Dr. D. N. Shukla (supra). With the aforesaid directions, all the writ petitions are disposed of. 32. The parties will bear their costs.