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2000 DIGILAW 454 (DEL)

UNIVERSITY OF DELHI v. S. R. GUPTA

2000-05-26

CYRIAC JOSEPH

body2000
CYRIAC JOSEPH, J. (ORAL) ( 1 ) THE petitioners herein are the University of Delhi and the Executive Council,university of Delhi. Respondent No. 1 is Dr. S. R. Gupta, Reader, Department oflibrary and Information Science. University of Delhi. Respondent No. 2 is Prof. Krishan Kumar who also is employed in the Department of Library and Informationscience, University of Delhi. ( 2 ) THE petitioners are defendants 1 and 2 in Suit No. 57/98 pending in the Court ofcivil Judge, Delhi. Respondent No. 1 Dr. S. R. Gupta is the plaintiff and respondentno. 2 Prof. Krishan Kumar is defendant No. 3 in the said Suit. ( 3 ) ACCORDING to the plaintiff in the above mentioned Suit No. 57/98, he is employedas Teacher with the designation of reader in the Department of Library andinformation Science of the University of Delhi (defendant No. 1 ). Under the provisionsof the statute and the ordinance of the University, the plaintiff claimed to be eligibleand entitled to be appointed as the Head of the Department of Library and Informationscience, University of Delhi by virtue of his turn due to his seniority in the saiddepartment. Alleging that the University authorities wrongly, illegally and unjustifiablydenied him the chance to be appointed as the Head of the Department, the plaintifffiled the Suit praying for the following reliefs: "i) Declaration thereby declaring the impugned Notification No. C-1/4/2/dated 21/11/1997, appointing the defendant No. 3 as the Head ofthe Department of Library and Information Science, University of Delhi, and theappointment ofthe defendant No. 3 as illegal, null and void, and inoperative. ii) Permanent Injunction thereby restraining the Defendants Nos. 1 and 2 toappoint any retired Professor as the Head of the Department of Library andinformation Science, University of Delhi, either on current duty or regularbasis. iii) Mandatory Injunction thereby directing the Defendants 1 and 2 and otherauthorities in the University of Delhi to appoint the plaintiff as the Head of thedepartment of Library and Information Science, University of Delhi, for theperiod prescribed in the University Statutes and Ordinances. Any other orders as this Hon ble Court may deem fit and proper in thecircumstances of the case may kindly be passed in fovour of the plaintiff andagainst the defendants. Any other orders as this Hon ble Court may deem fit and proper in thecircumstances of the case may kindly be passed in fovour of the plaintiff andagainst the defendants. "along with the plaint, the plaintiff filed an application under Order 39, Rules 1 and 2read with Section 151 Civil Procedure Code with the following prayer: "it is, therefore, humbly prayed that this Hon ble Court be pleased to pass anad-interim ex-parte injunction against the defendants 1 and 2 and the otherauthorities in the University of Delhi, thereby restraining them from appointingthe defendant No. 3 on regular basis and the defendant No. 3 is restrainedfrom officiating as the Head of the "department, and the Delhi Universityauthorities are directed to ask only an eligible person to officiate as the Headofthe Department DURING THE PENDENCY OF THE PRESENT SUIT. "on behalf of defendants, a written statement was filed opposing the claims of theplaintiff ln paragraph 8-9 ofthe said written statement, the defendants contended asfollows:- "8-9. That in reply to the averments contained in paras No. 8 and 9 of theplaint, it is submitted that under ordinary circumstances the plaintiff wouldhave been appointed the Head of the Department but in view of the pendencyof an enquiry against him, his case cannot be considered for appointment ashead of the Department and under these circumstances the University hasthe discretion and the duty to appoint any other Professor or reader in thedepartment either to discharge the current duties of the Head of thedepartment or to act as the Head of the Department, as the case may be, asa purely temporary measure as provided under Clause 4 of Ord. XXIII. Andaccordingly in accordance with provisions of the Statute 9 (2) (d.) read withclause (4) of the Ordinance XXIII of the Ordinances of the University, Professorkrishnan kumar has been appointed to discharge the current duties of thehead of the Department of Library and Information science, with immediateeffect till further orders vide notification is illegal, baseless, wrong, unjustifiedor violative of long prevalent practice in the Department or ultra-vires theprovisions of the University Statutes and Ordinance. It is further wrong anddenied that the said act of the University has been done in exercise of powernot vested in the Vice-Chancellor or is a colourable exercise or misuse of theauthority ar an act of high-handedness on the part of the officers of theuniversity or has been issued by the authorities at the behest of any vestedinterest in the University opposed to the Plaintiff with any malafide intention orthe victims the Plaintiff as alleged or otherwise. It is further wrong and deniedthat the said notification is liable to be set aside by this Hon ble Court asalleged or otherwise. "in this context, it may be mentioned that the plaintiff filed the suit when the Vicechancellor, in accordance with the provisions of Statute 9 (2) (d) read with Clause (4)of Ordinance XXI 11 appointed Defendant No. 3 Prof. Krishan Kumar to discharge thecurrent duties of the Head of the Department of Library and Information Science tillfurther orders. ( 4 ) THE application filed by the plaintiff for interim relief was heard and disposed ofby the learned Civil Judge on 1/08/1998 directing the defendants to takenecessary steps within 15 days from the date of the order to consider the claim of theplaintiff for the post of Head of Department of Library and Information Science. In thesaid order dated 1/08/1998, the learned Civil Judge observed that theeligibility of the plaintiff for appointment to the post of Head of the Department had notbeen disputed by the defendant in the written statement and that-the only reasongiven by the defendant for not appointing him was the pendency of some enquiryagainst him. The learned Civil Judge further observed that the only significantquestion for disposing of the application was whether on the date of consideration ofthe claim of the plaintiff for the post of Head of the Department, any enquiry could besaid to have been pending on the basis of which the claim of the plaintiff could not beconsidered. According to the learned Civil Judge, even though Shri I. P. Singh wasappointed as Enquiry Officer to enquire into certain incident of alleged. mis-behaviourby the plaintiff towards Professor P. B. Mangia and Professor J. C. Sardana of thesame department and there was some preliminary investigation in the matter, thepreliminary enquiry had not been conclued and no charge sheet had been served onthe plaintiff. mis-behaviourby the plaintiff towards Professor P. B. Mangia and Professor J. C. Sardana of thesame department and there was some preliminary investigation in the matter, thepreliminary enquiry had not been conclued and no charge sheet had been served onthe plaintiff. The learned Civil Judge also observed that the defendants were notcertain about the possible outcome of the preliminary enquiry and whether thedefendants would be willing to initiate any action against the plaintiff. On that basis,the learned Civil Judge concluded that it could not be considered that on the date ofissuing theimpugned Notification dated 21/11/1997 appointing Professorkrishan Kumarto discharge current duty of the Head of the Department. Any enquirywas pending against the plaintiff. According to the learned Civil Judge, the stand ofthe defendants denying the post of Head of the Department to the plaintiff on theground of pendency of an enquiry against him is not in conformity with the law laiddown by the Supreme Court in UOI Vs. Janaki Raman, AIR 1991 Supreme Court2010. ( 5 ) AGGRIEVED by the order dated 1/08/1998 of the learned Civil Judge, thedefendants filed an appeal (MCA No. 221/98) in the Court of Senior Civil Judge,delhi. The said appeal was dismissed by the learned Senior Civil Judge on 1 9/08/1998. While dismissing the appeal, the learned Senior Civil Judge held thatonly a fact-finding enquiry was initiated against the plaintiff and no formal chargesheet was given to him and therefore it could not be said that enquiry had beeninitiated against him. He further held that the enquiry was not being properly conductedas it was ordered by the Vice Chancellor only and not by the Vice Chancellor actingwith the Executive Council of the University. The learned Senior Civil Judge alsorelied on the judgment of the Supreme Court in UOI Vs. Janaki Raman, MR 1991supreme Court 2010 and held that promotion etc. , could not be withheld on theground 6f pendency of some disciplinary or criminal proceedings against theemployee. According to the learned Senior Civil Judge it cannot be said that theplaintiff was not entitled to be considered for promotion as Head of the Departmentby rotation due to the pendency of enquiry that too at very initial stage. ( 6 ) CHALLENGING the order dated 1/08/1998 of the learned Civil Judge and theorder dated 19/08/1998 of the learned Senior Civil Judge, the petitioners havefiled this Revision Petition. ( 6 ) CHALLENGING the order dated 1/08/1998 of the learned Civil Judge and theorder dated 19/08/1998 of the learned Senior Civil Judge, the petitioners havefiled this Revision Petition. According to the revision petitioners, the direction givenby the learned Civil,judge in the impugned order dated 1/08/1998 was beyondthe scope of the application of the plaintiff under Order 39, Rules 1 ana 2 read with Section 151 C. P. C. , and the relief granted was not even prayed for by the plaintiff inhis application. It is contended that by directing the defendants to consider the claimof the plaintiff for the post of the Head of the Department within 15 days from the dateof the order, the trial court virtually decreed the suit in favour of the plaintiff. It is alsocontended that both the trial court and the appellate court failed to correctly understandand apply the provisions contained in Statute 9 (d) and Ordinance XXIII of the University. It is further contended that the courts below erred in holding that no enquiry waspending against the plaintiff. According to the revision petitioners, the University hasthe power and discretion to withhold the appointment of the plaintiff to the post ofhead of Department till the enquiry proceedings against him are completed. It iscontended that the appointment of Professor Krishan Kumar as per Notificationdated 21/11/1997, was purely a temporary measure and the saidappointment did not amount to Ignoring the claim of the plaintiff and that it amountedonly to postponing the decision on the question of appointment of the plaintiff to thepost of Head of the Department till the enquiry pending against him was completed. Itis further contended that the appellate court went wrong in examining the legality ofthe enquiry as the legality of the enquiry is not the subject matter of the suit and theplaintiff had no case that the enquiry was illegal. According to the revision petitioners,the appointment of Head of the Department is not a promotion. but only a rotationalappointment. The senior-most person is appointed as Head of the Department for aperiod of three years and thereafter the next in seniority is normally appointed as thehead of the Department. The appointment of the Head of the Department is not acase of promotion or selection. The Judgment of the Supreme Court in UOI Vs. Janaki Raman has no application to the facts of this case. The appointment of the Head of the Department is not acase of promotion or selection. The Judgment of the Supreme Court in UOI Vs. Janaki Raman has no application to the facts of this case. It is also contended thatthe enquiry proceedings cannot be said to be not pending merely because chargesheet has not been served on the delinquent employee. ( 7 ) BEFORE proceeding further in this case it is necessary to see the relevantstatutory provisions. Statute 9 (2) (d) provides as hereunder: " (D) (I) Each Department shall have a Professor as its Head provided thatwhen in a Department there is only one Professor or no Professor eligible tobe the Head, a Reader may be appointed as its Head and when there is noprofessor or Read eligible to be the Head, the Dean of the Faculty concernedshall act as the Head of the Department. (ii) No person shall ordinarily be appointed or continue as the Head of adepartment on his attaining the age of sixty years. (iii) Subject as aforesaid, the duties and functions, terms and conditions andmethod of appointment of the Head of a Department shall be prescribed bythe Ordinances. "ordinance XXIII reads thus: "ord. XIII. Head of Departments1. The Head of the Department shall be appointed by the Vice-Chancellor byobserving, as far as possible, the principle of rotation. Such appointmentsshall be reported to the Executive Council. 2. Notwithstanding anything contained in clause 1, if for any reason it has notbeen possible to appoint a person as Head of the Department who is seniorto the person (persons) who has already served or is serving as Head of thedepartment, it shall be open to the Vice Chancellor to appoint that person ashead of the Department whenever a vacancy next occurs if he can otherwisebe so appointed. 3. The Head of the Department shall hold office for a period of three years. Aperson shall not ordinarily be appointed as Head of the Department for asecond consecutive term. 4. Notwithstanding anything contained in Clause 2. pending the appointmentof a Head of the Department or during his absence on leave, the Vicechancellor may ask any Professor or any Reader in the Department either todischarge the current duties the current duties of the Head of the Departmentor to act as Head of the Department, as the case may be, as a purelytemporary measure. pending the appointmentof a Head of the Department or during his absence on leave, the Vicechancellor may ask any Professor or any Reader in the Department either todischarge the current duties the current duties of the Head of the Departmentor to act as Head of the Department, as the case may be, as a purelytemporary measure. Note:- The principle of rotation will apply from the person who is next in orderof seniority to the person who has already served or is serving as Head of thedepartment. " ( 8 ) PRIME facie, the post of Head of the Department is not a promotion post andappointment to the post of Head of the Department is not by promotion or selection. The Head of the Department is to be appointed by the Vice Chancellor by observing,as far as possible, the principle of rotation. It means that at a given time the seniormost Teacher in the Department need not necessarily be the Head of the Department. it is also seen from Statute 9 (d) (2) that there is no total prohibition against appointinga person as Head of the Department after his attaining the age of 60 years. The saidclause only says that no person shall ordinarily be appointed or allowed to continueas Head of the Department on his attaining the age of 60 years. The said clause onlysays that no person shall ordinarily be. appointed or allowed to continue as Head ofthe Department on his attaining the age of 60 years. It is also to be pointed out thatthe appointment of Professor Krishan Kumar was not a regular appointment as Headof the Department but was only a purely temporary measure by which the Vicechancellor, in exercise of his power under Clause 4 of Ordinance XXIII, has directedhim to discharge the current duties of the Head of the Department. It is also to be pointed out thatthe appointment of Professor Krishan Kumar was not a regular appointment as Headof the Department but was only a purely temporary measure by which the Vicechancellor, in exercise of his power under Clause 4 of Ordinance XXIII, has directedhim to discharge the current duties of the Head of the Department. ( 9 ) LEARNED counsel for the petitioner is right in pointing out that in the applicationfiled under order 39 Rules 1 and 2 read with Section 151 CPC, the plaintiff had notprayed for any interim order directing the defendants either to appoint the plaintiff ashead of the Department or to consider him for such appointment, Therefore, thedirection of the learned Civil Judge to consider the claim of the plaintiff for appointmentas Head of the Department within 15 days beyond the scope of the application underorder 39, Rules 1 and 2 read with Section 151 CPC. This material irregularity wasnot taken into consideration by the learned Senior Civil Judge while dismissing theappeal of the defendants. ( 10 ) IT is not disputed that barring the four Professors who were re-employed onattaining the age of Superannuation (60 years), the. plaintiff was the senior mostteacher in the Department. However, under the Statute there is no total prohibitionagainst the appointment of a Teacher as Head of the Department after his attainingthe age of 60 years. The appointment to the post of Head of the Department is not bypromotion or by selection but by rotation. The Vice Chancellor is not always bound toappoint the senior most Teacher as the Head of the Department. Hence, prime faciethe plaintiff had no enforceable legal right to be appointed as Head of the Department. Moreover, learned counsel for respondent No. 1 could not point out any law orprovision in the Statute or Ordinance of the University which prevented the vicechancellor from withholding the decision on the plaintiff s claim for appointment ashead of the Department on the ground that an enquiry was pending against him. From the documents placed on record of the trail court by defendant No. 1, copies ofwhich were produced in this Court also, it could not be said that enquiry was notpending against the plaintiff. Even the Courts below found that enquiry was therethough it was still at initial stages. From the documents placed on record of the trail court by defendant No. 1, copies ofwhich were produced in this Court also, it could not be said that enquiry was notpending against the plaintiff. Even the Courts below found that enquiry was therethough it was still at initial stages. The delay in completing the enquiry or the failure toserve a formal charge sheet cannot inhibit the Vice Chancellor s power to withholdappointment of the plaintiff as Head of the Department in view of the pendency of theenquiry. The Judgment of the Supreme Court in UOI Vs. Janaki Raman, primafacie has no relevance or application to the facts of this case. The courts below havenot given any finding that enquiry was not pending against the plaintiff or that the Vicechancellor has no power to withhold appointment in View of the pendency of enquiryagainst the delinquent officer. In these circumstances, the learned Civil Judge wasnot justified in directing the defendants to consider the claim of the Plaintiff forappointment as Head of the Department. ( 11 ) THE learned Civil Judge failed to correctly understand and apply the statutoryprovisions and to properly exercise the discretion under Order 39, Rules 1 and 2read with Section 151 CPC. While deciding the application under Order 39, Rules 1and 2 read with Section 151 CPC, the learned Civil Judge did not consider whetherthe plaintiff had made out a strong prima facie case entitling him for interim relief,whether the balance of convenience was in fovour of the plaintiff and whether in theabsence of an interim order any irreparable injury and loss would be caused to theplaintiff. Hence the order of the learned Civil Judge is wrong and illegal. ( 12 ) THE courts below erred in going into the question of the legality of the enquiryordered by the vice Chancellor while considering the application for interim relief. The legality and validity of the enquiry is not even the subject matter of the suit as perthe averments in the plaint. ( 13 ) THE courts below have not given any finding that the action of thevice Chancellorin directing defendant No. 3 to discharge the current duties of the Head of thedepartment was illegal. The Courts below also have not given any finding that underthe relevant rules at least prima fade the plaintiff had an enforceable right to beappointed as Head of the Department. The Courts below also have not given any finding that underthe relevant rules at least prima fade the plaintiff had an enforceable right to beappointed as Head of the Department. ( 14 ) IN the light of the discussion above, I am of the view that the impugned orders ofthe learned Civil Judge and the learned Senior Civil Judge are wrong and are vitiatedby material regularities and that by issuing the impugned direction the learned Civiljudge exercised his discretion wrongly and improperly. Therefore, the impugnedorders are liable to be set aside. Accordingly, the order dated 1/08/1998 oflearned Civil Judge and the Order dated 19/08/1998 of learned Senior Civiljudge are hereby set aside. ( 15 ) HOWEVER, it is made clear that the observations made and the views expressedin this order are only my prima fade observations and views and that they will not inany way prejudice the contentions of the parties in the Suit. The revision petition stands allowed in the above terms. The parties are left tobear their own costs.