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1998 DIGILAW 769 (SC)

R. P. Tripathi v. Chancellor, Lucknow University

1998-07-23

M.SRINIVASAN, SUJATA V.MANOHAR

body1998
ORDER : Sujata V. Manohar, J. The appellant joined as a Lecturer in the Hindi Department of Lucknow University in a leave vacancy in August 1965. He was subsequently given a regular appointment as a Lecturer and was confirmed in that post in 1975. Prior to 1968, there were three posts of Readers in the Hindi Department of Lucknow University. One more post was sanctioned by the State Government on 18-1-1968 and the second additional post was sanctioned by the State Government on 3-9-1970. These two posts were made permanent posts under Government order dated 12-7-1972. 2. Pursuant to an advertisement issued for 5 posts of Readers in the Hindi Department of Lucknow University, the appellant gave his application. He was selected to one of the 5 posts on the recommendation of the Selection Committee and he took charge as Reader on 9-3-1983 after the Executive Council accepted the recommendation of the Selection Committee. 3. On the representation of Respondent 4 to the Chancellor, the Chancellor set aside all 5 appointments to the posts of Readers in the Hindi Department by his order dated 9-12-1983. This order was challenged in the writ petition before the Lucknow Bench of the Allahabad High Court. By the impugned judgment, the High Court has upheld the selection of three petitioners, viz., Petitioners 1, 2 and 3 in the writ petition (Respondents 5 to 7 herein) and has set aside the order of the Chancellor dated 9-12-1983 to that extent. The High Court, however, held that the selections for two posts of Readers out of five, including the post which was given to the appellant herein, were vitiated for want of valid "existence" of these two posts and upheld the order of the Chancellor to that extent. 4. It seems that the attention of the High Court was not drawn to the Uttar Pradesh State Universities (Validation of Appointments) Act, 1984 which validated certain appointments made in the State Universities. Section 2 of the Act validates appointment of every teacher made in any university governed by the Uttar Pradesh State Universities Act, 1984, during the period 1-7-1978 and the date of commencement of the Act (29-9-1984) even if the appointment is in excess of the number of posts advertised. Section 2 of the Act validates appointment of every teacher made in any university governed by the Uttar Pradesh State Universities Act, 1984, during the period 1-7-1978 and the date of commencement of the Act (29-9-1984) even if the appointment is in excess of the number of posts advertised. Such appointment shall be and be deemed always to have been valid and validity of such appointments shall not be called in question before any court, tribunal, officer or authority merely on the ground that the post was not separately advertised or that the prescribed procedure was not followed. 5. In the present case, although 5 posts were actually advertised and the appellant was duly selected to one of these posts, the High Court has set aside his appointment on the ground that only three posts and not five were legally available. The two additional posts which had been sanctioned by the State and made permanent in July 1972, were not properly created because although the State Government sanctioned these posts, recommendation of the Academic Council and approval of the Executive Council had not been obtained prior to the advertisement for these posts. In the present case, the Academic Council sent its formal recommendation for the two posts within a few days of the selection. The Executive Council gave an ex post facto approval to the creation of these posts on 3-9-1983, i.e., within a few months. If the appointments to these two posts are held to be in excess of the posts which should have been advertised, the Validating Act would save these appointments. On the facts of the present case, all the authorities concerned proceeded on the basis that these two posts were validly created and made selections accordingly. All technical requirements for their creation were also complied with soon after selection. Even if the posts are treated as having been created a little later, the selections made for these two posts cannot be faulted since the process of selection is legal and valid. In view of the above, the High Court ought not to have set aside the appointment of the appellant to one of these posts. Even if the posts are treated as having been created a little later, the selections made for these two posts cannot be faulted since the process of selection is legal and valid. In view of the above, the High Court ought not to have set aside the appointment of the appellant to one of these posts. Looking to the facts of the present case and in view of the fact that the posts have been duly sanctioned and have been throughout treated by the Executive Council as having been validly created, and in view of the fact that the requisite formal approvals were in fact granted in respect of these two posts on 3-9-1983, the selection of Appellant 4 to one of the two posts which were about to be created should not have been set aside. 6. We are informed that pursuant to the interim orders of this Court passed in September 1985 the appellant has been functioning in the said post. Nobody has appeared on behalf of the respondents to challenge the contentions raised by the appellant in this appeal. The appeal is allowed and the impugned order of the High Court upholding the order of the Chancellor qua the appellant is set aside. The order of the Chancellor in respect of the appellant is quashed. There will, however, be no order as to costs in the circumstances of the case. Appeal allowed.