Bholanath Mukherjee & Ors vs R.K.Mission V.Centenary College & Ors

E

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2457 OF 2006

Bholanath Mukherjee & Ors. .. Appellants

VERSUS

R.K. mission V. Centenary

College & Ors. ..Respondents

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. This appeal is directed against the final

judgment and order of the Calcutta High

Court dated 21st September, 2004

in M.A.T. No. 476 of 2004 arising out of Writ

Petition No. 29805(W) of 1997 vide which the

order of the learned Single Judge of the High

Court was set aside.

2. We may notice the essential facts, which

would have a bearing on the determination of

the issues raised in this appeal. Admittedly,

there has been a controversy with regard to

the special status enjoyed by the

Ramakrishna Mission Vivekananda

1

Centenary College at Rahara (hereinafter

referred to as `respondent No.1') for a long

period of time. The College was initially

established in the year 1961 with a grant of

Rs.2 lakhs given by the Government of West

Bengal in the Education Department. The

additional cost for establishing the College

had been borne by the State Government.

Subsequently on 25th April, 2002, the

Government of West Bengal, in order to

advance collegiate education and with a view

to reduce the overcrowding in good colleges in

Calcutta decided to set up a three year degree

college at Rahara. Such college was to be set

up on the recommendations of the University

Grants Commission (for short `UGC'). The

college was duly established and granted

affiliation to Calcutta University on 13th May,

1963. It is a fully aided college; being

sponsored and financed by the State

Government.

3. The controversy herein relates to the

appointment of the Principal of the College.

The post of Principal is included in the

definition of Teacher, as contained in Section

2 Clause 9 of the aforesaid Act. The aforesaid

Clause defines the term Teacher to include a

Professor, Assistant Professor, Lecturer,

Tutor, Demonstrator, Physical Instructor or

any other person holding a teaching post of a

college recognised by the University to which

such college is affiliated and appointed as

such by such college and includes its

Principal and Vice-Principal.

Section 3 of the Act provides "appointment to

the post of a Teacher shall be made by the

Governing Body on the recommendations of

the University and College Service

Commission to be constituted by the State

Government in the manner prescribed". The

2

appointment on the post of Teachers of a

college is governed by the College Service

Commission established under the West

Bengal College Service Commission Act,

1978. Section 3 of the aforesaid Act is as

under:-

"(1) The State Government shall, with effect

from such date as may by notification,

appoint, constitute Commission by the name

of the West Bengal College Service Commission

consisting of five members of whom one shall

be the Chairman.

(2) Of the members one shall be person who,

not being an educationist, occupies or has

occupied in the opinion of the State

Government, a position of eminence in public

life or in Judicial or administrative service and

the other shall have teaching experience either

as a Professor of a University or as a Principal

for a period of not less than ten years or as a

teacher, other than Principal of a College, for a

period of not less than fifteen years."

Section 7(1) and Proviso (ii) are as under:-

"Notwithstanding anything contained in any

other law for the time being in force or in any

contract, custom or usage to the contrary, it

shall be the duty of the Commission to select

persons for appointment to the post of

Teachers of a College:

Provided that-

(i)..

(ii) For selection of a person for appointment

to the post of Principal, the Commission shall

be aided by the vice-Chancellor of the

University to which such college is affiliated or

his nominee and a nominee of the Chancellor

of such University."

3

4. Section 15 provides that "nothing contained

in the Act shall apply in relation to any

college not receiving any aid from the State

Government or any college established and

administered by a minority, whether based

on religion or language." The State

Government issued Memo No. 752-Edn (CS)

to revise the existing pattern for the

composition of the governing bodies of the

Government sponsored colleges excepting in

cases where the college has a special

constitution on the basis of Trust Deeds or

where the colleges are run by Missionary

Societies on the basis of agreement with the

respective missions. The academic

qualification prescribed for appointment on

the post of Principal by the Government of

West Bengal vide a G.O. No. 149-Edn(CP)

dated 22nd February, 1994.

5. It appears that earlier the controversy with

regard to the appointment on the post of

Principal was subject matter of the decision

rendered by this Court in the case of

Bramchari Sidheswar Shai & Ors. Vs. State

of W.B. & Ors.1 . In deciding the controversy

raised in the aforesaid case, this Court has

extensively traced the history with regard to

the setting up of three year degree colleges

under the auspicious of Ramakrishna

Mission Boy's Home at Rahara. Therefore, it

is not necessary for us to recapitulate the

entire sequence of events in the present

proceedings.

6. Suffice it to say that the aforesaid controversy

had arisen in the context of a challenge made

in Writ Petition being C.O.No. 12837(W) of

1 (1995) 4 SCC 646

4

1980 to the appointment of Swami

Shivamayananda, who was till then Head of

Ramakrishna Mission, Vidya Mandir, Bellur

Math, as the Principal of Ramakrishna

Mission College. The petitioners had claimed

that Shivamayananda did not have the

requisite qualifications for being appointed as

the Principal and that he had not been

appointed by a duly constituted Governing

Body. The prayers in the writ petition were

for the issue of (i) a writ in the nature of

mandamus commanding the Government of

West Bengal to reconstitute the Governing

Body of the Ramakrishna Mission College

according to standard pattern for Governing

Bodies of sponsored colleges as per

Government Memo No. 752-Edn (CS)/C. S.

30-3/77 dated 18th April, 1978; (ii) a writ

declaring that the Ramakrishna Mission

College is governed by West Bengal Act of

1975 and West Bengal Act of 1978; (iii) a writ

in the nature of quo warranto restraining

Swami Shivamayananda as Principal of

Ramakrishna Mission College and other

incidental writs.

7. During the pendency of this writ petition, the

University of Calcutta issued three notices to

the Ramakrishna Mission to reconstitute the

Governing Bodies of the Ramakrishna

Mission Residential College, Narendrapur,

Ramakrishna Mission Shiksha Mandir,

Howrah and Ramakrishna Mission Vidya

Mandir, Howrah. The legality of these notices

was challenged by the Ramakrishna Mission

by filing an Interlocutory Application in the

writ petition. The writ petition was resisted

by the Ramakrishna Mission on the ground

that being a minority based on religion, the

institutions established by it would be

5

protected under Article 30(1) of the

Constitution. Therefore, the West Bengal Act

of 1975 and West Bengal Act of 1978 would

not be applicable. The Ramakrishna Mission

had also claimed its right to establish and

maintain institutions for religious and

charitable purposes and to manage its own

religious affairs; to own and acquire movable

and immoveable property; and to administer

such property in accordance with the law.

The aforesaid rights were claimed under

Article 26 of the Constitution of India. The

writ petition was dismissed by the learned

Single Judge. It was held that institutions

established by Ramakrishna Mission were

protected under Article 30(1) of the

Constitution of India. It was also held that

the West Bengal Act of 1975 and West Bengal

Act of 1978 would not be applicable. It

quashed the three notices issued by the

Calcutta University. It, however, rejected the

claim of Ramakrishna Mission under Article

26(a) of the Constitution of India. The

aforesaid judgment was carried in appeal

before the Division Bench by the writ

petitioners as well as the State of West

Bengal and Calcutta University. The Division

Bench heard all the appeals together, and by

a common judgment dismissed all the

appeals. The Division Bench upheld the

conclusion of the learned Single Judge that

Ramakrishna Mission being a minority based

on religion was protected under Article 30(1)

of the Constitution of India. It further held

that the Ramakrishna Mission had the right

to establish educational institutions as

religious denomination under Article 26(a) of

the Constitution of India. It further held that

both the West Bengal Act of 1975 and

West Bengal Act of 1978 would not be

applicable as these enactments did not

6

contain any express provision indicating their

application to educational institutions

established and maintained by the

Ramakrishna Mission. It further observed

that to hold otherwise would lead to

infringement of the rights enjoyed by the

Ramakrishna Mission under Article 26(a) and

26(b) of the Constitution. However, it left

open the question of legality or otherwise of

the direction contained in the notices issued

by the Calcutta University to the

Ramakrishna Mission for reconstitution of

Governing Bodies of the Ramakrishna

Mission Residential College, Narendrapur,

Ramakrishna Mission Shiksha Mandir,

Howrah and Ramakrishna Mission Vidya

Mandir, Howrah.

8. The aforesaid judgment of the Division Bench

was challenged before this Court in a number

of appeals, which has been noticed above.

These appeals were decided by this Court by

a common judgment dated 2nd July, 1995

in the case of Bramchari Sidheswar Shai

(supra).

9. This Court formulated six points arising for

consideration in the appeals, which were as

follows:-

"1. Can the citizens of India residing in the

State of West Bengal who are professing,

practising or propagating the religious

doctrines and teachings of Ramakrishna and

have become his followers, claim to belong to a

minority based on Ramakrishna religion which

was distinct and different from Hindu religion

7

and as such entitled to the fundamental right

under Article 30(1) of the Constitution of India,

of establishing and administering educational

institutions of their choice through

Ramakrishna Mission or its branches in that

State ?

2. Do persons belonging to or owing allegiance

to Ramakrishna Mission belong to a religious

denomination or any section thereof as would

entitle them to claim the fundamental rights

conferred on either of them under Article 26 of

the Constitution of India ?

3. If persons belonging to or owing allegiance

to Ramakrishna Mission is a religious

denomination or a section thereof, have they

the fundamental right of establishing and

maintaining institutions for a charitable

purpose under Article 26(a) of the Constitution

of India?

4. If Ramakrishna Mission as a religious

denomination or a section thereof establishes

and maintains educational institutions, can

such institutions be regarded as institutions

established and maintained for charitable

purpose within the meaning of Article 26(a) of

the Constitution of India ?

5. Is Ramakrishna Mission College at Rahara

established and maintained by Ramakrishna

Mission and if so, will the constitution of its

governing body by the Government of West

Bengal amount to infringement of

Ramakrishna Mission's fundamental right to

establish and maintain an educational

institution under Article 26(a) of the

Constitution of India?

8

6. Can the court direct the West Bengal

Government because of W.B. Act 1975 and

W.B. Act 1978, to constitute governing body on

a "standard pattern" of sponsored college

envisaged under its Memo dated 18-4-1978 in

respect of Ramakrishna Mission College when

that memo itself says that colleges established

and maintained by Missions on the basis of

agreements cannot be treated as sponsored

colleges for the purpose of constituting

governing bodies for them on a "standard

pattern" ?"

10. Upon consideration of the entire matter, the

conclusions recorded were as under :-

Point 1

(i) For the foregoing reasons, we hold that

the citizens of India residing in the State

of West Bengal, who are professing,

practising or propagating the religious

doctrines and teachings of Ramakrishna

and have become his followers, cannot

claim to belong to a minority based on

Ramakrishna religion which was distinct

and different from Hindu religion and as

such are not entitled to the fundamental

right under Article 30(1) of the

Constitution of India, of establishing and

administering educational institutions of

their choice through Ramakrishna

Mission or its branches in that State and

answer Point 1 accordingly, in the

negative.

Point 2

9

(ii) For the said reasons, we hold that

persons belonging to or owing their

allegiance to Ramakrishna Mission or

Ramakrishna Math belong to a religious

denomination within Hindu religion or a

section thereof as would entitle them to

claim the fundamental rights conferred

on either of them under Article 26 of the

Constitution of India and answer Point 2,

accordingly, in the affirmative.

Point 3

(iii) Since we have held while dealing with

Point 2 which arose for our consideration

that the persons belonging to or owing

allegiance to Ramakrishna Mission or

Ramakrishna Math as followers of

Ramakrishna, form a religious

denomination in Hindu religion, as a

necessary concomitant thereof, we have

to hold that they have a fundamental

right of establishing and maintaining

institutions for a charitable purpose

under Article 26(a) of the Constitution of

India, subject, of course, to public order,

morality and health envisaged in that

very article. Point 3 is, accordingly

answered, in the affirmative.

(iv) On Point Nos. 4 & 5, it was observed as

follows:-

"We think that the learned Judges of the

High Court should not have decided on

the general question whether educational

institutions established and maintained

by religious denomination including those

established and maintained by

Ramakrishna Mission for general

1

education get the protection of Article

26(a) of the Constitution when that

question in a general form, was not really

at issue before them. Therefore, the views

expressed on the question shall,

according to us, ought to be treated as

non est and the question is left open to

be decided in proper case, where such

question really arises and all the parties

who might be concerned with it are

afforded adequate opportunity to have

their say in the matter."

(v) On Point No. 6, it was observed as follows:-

"67. As stated above, the State

Government has excepted the

Ramakrishna Mission College at Rahra in

the matter of constituting a Governing

Body on a standard pattern for the

obvious reason that constituting such a

governing body for a college like

Ramakrishna Mission College which was

all through allowed to have a governing

body constituted by Ramakrishna

Mission, which had built the College on

its land conceding to the request made in

that behalf by the State Government itself

on the initiation of the Central

Government, may not be just. Thus when

Ramakrishna Mission College had come

to be built, established and managed by

the Ramakrishna Mission, it is difficult

for us to think that the learned Judges of

the Division Bench of the High Court

were not right in holding that the

Government should not be directed by

issue of a mandamus, to constitute a

governing body for the Ramakrishna

Mission College on a standard pattern

taking recourse to the W.B. Act of 1975

1

and the W.B. Act of 1978, although for its

own reasons. Therefore, in the peculiar

facts and circumstances in which

Ramakrishna Mission College at Rahra

was established on Ramakrishna

Mission's land and allowed to be

administered by the Ramakrishna

Mission through its own governing body,

we feel that interests of justice may suffer

by directing the State Government to

constitute its own governing body on a

standard pattern of the usual sponsored

colleges, as prayed for by the writ

petitioners. However, the view we have

expressed in the matter shall not come in

the way of the State Government to

change their earlier arrangement with the

Ramakrishna Mission in the matter of

governance of the Ramakrishna Mission

College, if on objective considerations

such change becomes necessary in the

larger interests of students, teachers and

other employees of that College and is so

permitted by law.

68. In the said view we have taken in the

matter of constituting a Governing Body

by the Government of West Bengal in

respect of the Ramakrishna Mission

College at Rahra, there is no need to go

into the question that there has been

infringement by the Government of

Ramakrishna Mission's fundamental

rights to establish and maintain

educational institutions under Article

26(a) of the Constitution of India

inasmuch as such a question does not

arise, in view of the answer already given

by us on Point 3 above. So also, question

of directing the West Bengal Government

because of the W.B. Act of 1975 and the

1

W.B. Act of 1978, to constitute governing

body on "standard pattern" of sponsored

college envisaged under its Memo dated

18-4-1978 in respect of Ramakrishna

Mission College, cannot arise.

69. Points 4 to 6 are accordingly

answered."

11. After the decision in the aforesaid case, again Writ

Petition No.29805(W) of 1997 was filed in the

Calcutta High Court challenging initially the

appointment of Swami Shivamayananda

(Respondent No.16 herein) and Swami Divyananda

(respondent No.17 herein) as Principal and

Honorary Vice-Principal respectively. It was alleged

that appointment of both the respondents had been

made without following the provisions of the West

Bengal Act of 1975 and West Bengal Act of 1978.

However, both the persons during the pendency of

the writ petition before the High Court went on open

ended leave from their respective posts. Thereafter

on 14th May, 1999, by an Office Order

No.RKMVCC/21/99, the college authorities elevated

Swami Sukadevananda (respondent No. 3 herein)

1

Vice-Principal of the college to the post of Acting

Principal with immediate effect, again without

following the West Bengal Act of 1975 and West

Bengal Act of 1978. He was designated as the

Principal of the College on 20th March, 2001 vide

Office Order No.3/RKMVCC/21/2001. The

appointment of Swami Sukhadevananda, as

Principal of the College led to the amendment of the

writ petition incorporating a challenge to his

appointment.

12. It is the case of the appellants, that the respondent

No. 3 was only First class M.Sc. in Biochemistry

from Karnataka University and had worked as

Scientific Officer in Bhabha Atomic Research

Centre, Bombay for about four years. As far as

teaching experience in the college is concerned, he

had only six years of such experience. Thus,

according to the appellants, he did not possess the

requisite qualifications for the post of Principal as

laid down in the above mentioned Government

1

order dated 22nd February, 1994. The learned Single

Judge by his judgment dated 29th September, 2003

allowed the writ petition and it was observed as

under;

"Therefore, I hold that as regard management,

administration and maintenance of this

Institution the State government at present

has denuded itself its authority or right to

interfere with. But the provisions of the Acts

namely West Bengal College Teachers (Security

of Service) Act, 1975, West Bengal College

Service Commission Act, 1978 and the

Calcutta University First Statute, 1979 will

have application unless these laws by

themselves exempt these organizations from

being applicable. I do not find any such

exception."

The appointment of the Principal was declared not to

have been made under the provisions of the West Bengal

Act of 1975, West Bengal Act of 1978 and the Calcutta

University First Statute, 1979. A direction was issued to

the Governing Body of the College to take steps to fill the

post either temporarily or permanently in accordance

with laws in force. Aggrieved, the Ramakrishna Mission

College went in appeal before the Division Bench. In

order to consider the entire matter, the Division Bench

1

analyzed the judgment of this Court in Bramchari

Sidheswar Shai's case (supra) extensively. It noticed

the conclusions recorded by this Court as extracted by us

above. The Division Bench concluded as under:-

"Thus, from the questions raised by the

Hon'ble Court and the answers given to each of

them by the Hon'ble Court as indicated above,

we are fully convinced that although the

Hon'ble Court declined to give protection of

Article 30(1) or protection under Section 26(a)

of the Constitution to the Ramakrishna

Mission and the college established by it, the

Court certainly decided in a most assertive

manner that having regard to the background

of the establishment of the college and having

regard to the stand taken by the Government

of West Bengal since inception of the college in

the matter of its governance and management

with special reference to office memo dated

18th April, 1978, there is no need to ask for

implementation of the provisions of the Act of

1975 or the Act of 1978."

13. The Division Bench negated the contentions of the

learned counsel for the writ petitioners/ appellants

that in view of the provisions contained in the West

Bengal Act of 1975, West Bengal Act of 1978 and

the Calcutta University First Statute, 1979, the

college could not be allowed to have the Monk as

Principal. It is observed that the Government was

1

very much aware of the fact that in the matter of

this college, the general procedure for selection of a

Principal through the College Service Commission

shall not be made applicable. It is further observed

that natural consequence of the aforesaid

conclusion was that there would be no application

under the provisions of the Calcutta University First

Statute, 1979, aimed at filling up of temporary

vacancy of the post of Principal like other

Government sponsored colleges. In the concluding

paragraphs, the Division Bench observed as

follows:-

"After close examination of the judgment of the

Apex Court rendered in the case of Bramchari

Sidheswar Shai's (supra), we are seriously

contemplating whether the present writ

petition at all was maintainable before the

learned Single Judge as the parties of the

present writ petition are almost identical of the

previous writ petition and almost same issues

as raised in the present petition were matter of

consideration before the Apex court and

further we are of the view that following the

long established principle of judicial discipline

and binding precedent, it was not at all

permissible to make any departure from the

conclusion reached by the Apex court which

has a binding effect upon the writ petitioners

who were parties to the earlier adjudication

1

and that apart, the present writ petition is also

barred under the principle of res judicata. Thus, having regard to the submissions of

contesting parties and on examination of the

materials placed before us, we are of firm view

that following the judgment of the Apex Court

rendered in the case of Bramchari Sidheswar

Shai's (supra) and in view of the recent office

memo of the Government of West Bengal dated

30th April, 2004, it was not permissible to

reopen the issue once again and to issue any

writ dishonouring the mandate of the Apex

Court when admittedly the State Government

has not deviated form its earlier stand relating

to the special status accorded to the college.

We, therefore, find sufficient merit in the

present appeal and in the stay petition and we

are inclined to allow the both.

Accordingly, both the appeal and the stay

petition are allowed resulting in dismissal of

the writ petition and setting aside the

judgment and order of the learned Single

Judge delivered in connection with Writ

Petition No. 29805(W) of 1997. We, however,

make no order as to costs considering the fact

and circumstances of the case."

14. This judgment is the subject matter of the present

appeal. We have heard the learned counsel for

parties.

15. Mr. Prashant Bhushan, learned counsel appearing

for the appellants submitted that even if the College

1

established by the Ramakrishna Mission enjoys a

special status, the appointment on the post of

Principal would still has to be made in conformity

with the qualifications prescribed by the

Government of West Bengal in its Order dated 22nd

February, 1994. Respondent No.3 does not even

possess the qualifications prescribed by the

University Grants Commission. Moreover,

respondent No.3 has not cleared the eligibility test

N.E.T./S.L.E.T. for Lecturer as required by the

UGC. His initial appointment as Acting Principal

and thereafter his appointment as permanent

Principal was null and void having been made

without following the provisions contained in the

West Bengal Act of 1975 and West Bengal Act of

1978. Learned counsel submits that the

qualifications prescribed under the Government

Order dated 22nd February, 1994 were in fact

amended by the subsequent G.O.s being G.O. No.

625-Edn (CS) dated 16th June, 1999 read with G.O.

No.1047-Edn (CS) dated 20th August, 2002. These

1

qualifications were duly published through

advertisement No. 2 of 2004. For the post of

Principal, the qualifications prescribed are as

under:-

"I. For General Degree Colleges:

(A) Academic qualifications:

(a) Master degree in Arts/Science/

Commerce/Music/Fine Arts with at least 55%

marks or its equivalent grade and good

academic record; Ph.D. Degree or evidence of

its equivalent published work of high standard

and teaching/research experience in an

affiliated degree college or University/Other

Institutions of Higher Education for at least

15 (fifteen) years preferably with administrative

experience. Or

(b) Serving as reader in any affiliated degree

College or University/research Institute with

total teaching experience of not less than 15

years. Or

(c) Serving as Selection Grade Lecturer in

any affiliated degree college with at least 55%

marks at the Master's level and good academic

record with teaching experience not less than

15 years in any academic Institution with

authenticated administrative experience of at

least five years and further having published

work equivalent to Ph.D. degree, the

equivalence be evaluated by the

University/Selection Committee consisting of

the subject experts who in turn will have to

mainly look in to the following aspects:-

2

1. Number of research paper

published,

2. Quality of research paper,

3. Relevance of the topic,

4. Journals where these have been

published."

16. It is submitted that respondent No.3 does not

possess the Ph.D, degree. He also did not possess

fifteen years administrative experience at the time of

his appointment. Learned counsel further

submitted that respondent No.3 has been appointed

on the said post merely because he is a monk at the

Ramakrishna Mission. The very purpose of

prescribing minimum qualifications and method of

selection for an important post like Principal of an

educational institution has been defeated. Learned

counsel further submitted that the Division Bench

has wrongly relied on the judgment of Bramchari

Sidheswar Shai's case (supra). The aforesaid

judgment had no relevance to the issue which has

been raised in the present proceedings.

2 17. On the other hand, Mr. L.N. Rao, learned senior

counsel appearing for the respondent Nos.1, 2 and

3 submits that the litigation in this case does not

survive as the appellants have retired. He further

submits that the appellants have not sought a writ

of quo warranto rather the relief sought is that one

of the senior teachers should be appointed as

Principal. The writ petition was based on individual

grievances. The relief claimed is also for the

redressal of individual grievances. All the appellants

had made a claim based on their seniority and

qualifications. Since all the appellants have retired

in the mean time, the issue has become academic.

This Court will, therefore, decline to examine the

matter on merits. He relies on the judgment of this

Court in the case of M.L. Binjolkar Vs. State of

M.P. 2 . On merits, the learned counsel submits that

the grievances of the appellants were that the

respondent No.3 lacked fifteen years of experience.

However, by now respondent No.3 possesses the

2 (2005) 6 SCC 224

2

required fifteen years experience. He also relies on

certain observations made by this Court in the case

of Ram Sarup Vs. Stat e of Haryana & Ors3 . The

entire controversy has been rendered academic in

the peculiar facts and circumstances of this case. In

the alternative, the learned senior counsel submits

that the writ petition would have to be treated as

public interest litigation. It is, however, settled by

this Court that public interest litigation would not

be maintainable in service law cases. In support of

this submission, he relies on the judgments of this

Court in the cases of Dr. Duryodhan Sahu & Ors.

Vs. Jitendra Kumar Mishra & Ors4 and Gurpal

Singh Vs. State of Punjab & Ors.5 . Therefore,

again no relief can be granted to the writ

petitioners/appellants.

18. We have considered the submissions made by the

learned counsel for the parties. In our opinion,

there is much substance in the submissions made

3 (1979) 1 SCC 168

4 (1998) 7 SCC 273

5 (2005) 5 SCC 136

2

by Mr. L.N. Rao, Mr. Dipankar P. Gupta and Mr.

Bhaskar P. Gupta, learned senior counsel that at

this stage, litigation in this case does not survive as

the appellants have retired. Even if the writ petition

is allowed and the appointment of respondent No.3

is declared null and void, none of the appellants

could be appointed on the post of Principal. A

perusal of the averments made in the writ petition

before the High Court would show that the

gravamen of the grievances of the writ

petitioners/appellants was that they were all senior

to Swami Sukhadevananda. It was further pointed

out that he had only six years of teaching

experience, while G.O. No. 149-Edn(CP) dated

22nd February, 1994 prescribes a minimum teaching

experience of sixteen years with administrative

experience. It was pointed out that on the one

hand, respondent No.3 did not possess the

necessary experience and was appointed as the

Principal. On the other hand, the applications of

the petitioner Nos. 1, 9 and 12 for the post of

2

Principal made through appropriate channel were

not at all considered at any stage by the appropriate

authority, though they are more qualified and

senior to Swami Sukhadevananda. It was further

pointed out that petitioners are suffering irreparable

loss in the form of deprivation from being promoted

as a Teacher-in-Charge and compelled to serve

under a junior in service and possessing lesser

qualifications. Again in Paragraph 41, it is stated

that Swami Divyananda is junior to all the

petitioners. It was further pointed out that Dr.

Biman Kumar Mukherjee, was the then petitioner

No. 1 and the then senior most Teacher. He had

put in more than three decades of lawful and

approved service to the Institution. He was,

therefore, lawful claimant to the post of Teacher-in-

Charge of the college. Therefore, it was a matter of

great humiliation and injustice to all the petitioners

to be forced to serve under an illegally appointed

person, who is junior to them all. In Ground 3 of the

writ petition, it is specially pleaded as follows:-

2 "For that, it is incumbent upon the

respondents to appoint the senior most

teacher, as Teacher-in-Charge of the college in

terms of the order contained in the letter

No.C/31/Cir dated 1st January, 1995 and

Statute 101B (as amended) and for such

failure of the respondents to act in accordance

with law the petitioners have been deprived of

their rights to the post and have suffered

demotion and financial loss."

From the above, it becomes evident that the grievances of

the writ petitioners were that they have been compelled

to work under a person, who was junior to them. The

petitioners having retired from service, no relief could

possibly be granted to them, even if the appointment of

respondent No.3 is held to be illegal or void. In such

circumstances, in our opinion, it would be an exercise in

futility to examine the merits of the controversy raised in

the appeal. By the retirement of all the appellants herein,

the issues raised herein have been rendered academic.

In M.L. Binjolkar's case (supra), this Court was

considering the legality of the orders passed by the

Madhya Pradesh State Administrative Tribunal,

Jabalpur, setting aside the orders of compulsory

retirement passed against a number of employees by the

2

State of Madhya Pradesh. The four employees were

directed to be reinstated. The writ petition filed by the

State of Madhya Pradesh was dismissed. The employees

concerned were permitted to join back pursuant to the

orders of reinstatement passed by the Administrative

Tribunal. All the four employees, who were so reinstated,

retired during the pendency of proceedings. The appeal

filed by the State was dismissed by this Court with the

following observations:-

"In view of the undisputed position that the

four employees who were directed to be

reinstated had, in fact, joined back service and

have retired on reaching the age of

superannuation, therefore, examination in

their cases as to the correctness of the view

expressed by the High Court would be an

exercise in futility. Though, implementation of

the Court's order does not render challenge to

an order infructuous, yet the fact situation of

the present case makes the issue academic.

This Court did not grant stay on the High

Court's order. The employees concerned, as

noted above after reinstatement have retired.

In these peculiar circumstances, we do not

think it necessary to examine correctness of

the High Court's order on merits. Therefore,

the appeals filed by the State -- Civil Appeals

Nos. 8695-97 of 2002 and 8663 of 2002 are

dismissed. We make it clear that we have not

expressed any opinion on the correctness of

the High Court's judgment as we have

2

dismissed the appeals only on the ground that

the employees concerned have already retired

and it would not be in the interest of anybody

to go into the merits."

Similarly, in the case of Sumedico Corporation & Anr.

Vs. Regional Provident Fund Commr.6 , this Court

declined to go into the vires of Section 7(a) of the

Employees Provident Fund and Miscellaneous Provisions

Act, 1952 as during the pendency of the appeal, the

Legislature itself amended the provisions of the Act by

inserting Section 7(d) providing for remedy of an appeal

before the Appellate Tribunal. In view of this

development, it was observed that the question of

challenge to the vires of Section 7(a) on the ground that

there was no appeal provided under the Act does not

survive and it has become academic. In the case of State

of Manipur & Ors. Vs. Chandam Manihar Singh7 , the

respondent had been removed from the post of Chairman

of the Manipur State Pollution Control Board by the

Governor of Madhya Pradesh in exercise of the powers

under Section 5(3) read with Section 6(1)(g) of the Act by

6 (1998) 8 SCC 381

7 (1999) 7 SCC 503

2

the order dated 19th October, 1998. The respondent

carried the matter in a writ petition before the High Court

of Assam, Imphal Branch. The learned Single Judge,

who heard this writ petition was pleased to allow the

same on 30th April, 1999. It may be noted that the

learned Single Judge had directed that the respondent

has continued to hold the office of the Chairman as his

removal was set aside and his tenure will end on 15th

October, 1999 counting three years from 16th October,

1996 when he was appointed as the Chairman of the

Board pursuant to earlier order. The State of Manipur

unsuccessfully carried the matter in an appeal before the

Division Bench. When the appeal filed by the State of

Manipur came up for hearing before this Court, the

learned counsel for the respondent submitted that

pursuant to the orders of the High Court, the respondent

has continued as a Chairman of the Board and his

tenure is almost coming to end and he does not intend to

continue as Chairman beyond 15th October, 1999. It was

submitted by the learned counsel for the respondent that

the issue raised by the State of Manipur has almost

2

become academic as no interim relief was granted by this

Court against the order of the High Court. Nor any

interim relief had been granted pending appeal against

the order of the learned Single Judge by the Division

Bench of the High Court. In these circumstances, this

Court observed as follows:-

"Having given our anxious consideration to the

rival contentions, we find that as the High

Court's direction in favour of the respondent's

tenure which is to expire on 15-10-1999 has

almost worked itself out and less than a month

remains for him to act as Chairman of the

Board, the first grievance raised by learned

Senior Counsel for the appellants in

connection with the removal of the respondent

by order dated 19-10-1998 has become of

academic interest. We, therefore, did not

permit learned Senior Counsel for the

appellants to canvass this point any further

before us. That takes us to the consideration of

the second point."

In our opinion, the aforesaid observations of this Court

would be clearly applicable in the facts and

circumstances of this case.

19. There is another reason why no relief, at present

could perhaps be granted to the appellants. Throughout

3

the proceedings before the High Court as well as before

this Court, no interim relief was granted by restraining

respondent No.3 from performing the functions of a

Principal. He has continued to function on the aforesaid

basis since his appointment on 14th May, 1999 as Acting

Principal and then on from 23rd March, 2001 onward as

Principal. Even according to the appellants, at the time

of his appointment, respondent No.3 had possessed the

experience of only six years. Therefore, by now, he would

have more than fifteen years of required experience for

the post of Principal. Therefore, the ground that the

respondent No.3 was not qualified as he did not possess

the necessary experience would also no longer be

available to the appellants.

20. In similar circumstances, this Court, in the case of

Ram Sarup (supra), observed as follows:-

"The question then arises as to what was the

effect of breach of clause (1) of Rule 4 of the

Rules. Did it have the effect of rendering the

appointment wholly void so as to be completely

ineffective or merely irregular, so that it could

be regularised as and when the appellant

acquired the necessary qualifications to hold

3

the post of Labour-cum-Conciliation Officer.

We are of the view that the appointment of the

appellant was irregular since he did not

possess one of the three requisite

qualifications but as soon as he acquired the

necessary qualification of five years' experience

of the working of Labour Laws in any one of

the three capacities mentioned in clause (1) of

Rule 4 or in any higher capacity, his

appointment must be regarded as having been

regularised. The appellant worked as Labour-

cum-Conciliation Officer from January 1, 1968

and that being a post higher than that of

Labour Inspector, or Deputy Chief Inspector of

Shops or Wage Inspector, the experience

gained by him in the working of Labour Laws

in the post of Labour-cum-Conciliation Officer

must be regarded as sufficient to constitute

fulfilment of the requirement of five years'

experience provided in clause (1) of Rule 4. The

appointment of the appellant to the post of

Labour-cum-Conciliation Officer, therefore,

became regular from the date when he

completed five years after taking into account

the period of about ten months during which

he worked as Chief Inspector of Shops. Once

his appointment became regular on the expiry

of this period of five years on his fulfilling the

requirements for appointment as Labour-cum-

Conciliation Officer and becoming eligible for

that purpose, he could not thereafter be

reverted to the post of Statistical Officer. The

order of reversion passed against the

appellant, was, therefore, clearly illegal and it

must be set aside."

A perusal of the above would show that the appellant

therein did not possess the necessary experience of five

3

years of the working of labour laws. It was held that his

appointment was irregular since he did not possess the

necessary experience. However, during the pendency of

the proceedings, he had acquired the necessary

experience and, therefore, the appointment must be

regarded as having been regularised. The aforesaid ratio

would be squarely applicable to the appointment of

respondent No.3.

21. Mr. Prashant Bhushan, however, submitted that the

appeal would not be rendered infructuous by the mere

retirement of the appellants. Learned counsel submitted

that all the appellants have been engaged in the field of

education throughout their lives. Therefore, deeply

interested in ensuring that the standards of education

are maintained. They are deeply concerned that of

appointment for the post of Principal shall be made in

accordance with the statutory provisions. Therefore, the

appellants would have the locus standi to continue the

proceedings.

3 22. We are unable to accept the aforesaid submission

made by the learned counsel. As noticed in the earlier

part of the judgment, the entire pleadings in the writ

petition are founded on the personal grievance of the writ

petitioners/appellants. The writ petitioners have not

come before this Court as educationists. Merely because

they are senior most teachers in the same institution,

would not necessarily give rise to the presumption, that

they had filed the writ petition in public interest. In our

opinion, a pure and simple service dispute is sought to

be camouflaged as a public interest litigation. This Court

on numerous occasions negated such efforts in

disguising the personal grievances as public interest

litigation. It is, however, not necessary to recapitulate the

oft quoted caution, save and except the observations

made by this Court in the case of Gurpal Singh (supra).

In paragraphs 10, 11 and 12 it is observed as follows :

"10. Public interest litigation is a weapon

which has to be used with great care and

circumspection and the judiciary has to be

extremely careful to see that behind the

beautiful veil of public interest an ugly private

malice, vested interest and/or publicity-

3

seeking is not lurking. It is to be used as an

effective weapon in the armoury of law for

delivering social justice to the citizens. The

attractive brand name of public interest

litigation should not be allowed to be used for

suspicious products of mischief. It should be

aimed at redressal of genuine public wrong or

public injury and not publicity-oriented or

founded on personal vendetta. As indicated

above, court must be careful to see that a body

of persons or member of the public, who

approaches the court is acting bona fide and

not for personal gain or private motive or

political motivation or other oblique

consideration. The court must not allow its

process to be abused for oblique

considerations by masked phantoms who

monitor at times from behind. Some persons

with vested interest indulge in the pastime of

meddling with judicial process either by force

of habit or from improper motives and try to

bargain for a good deal as well as to enrich

themselves. Often they are actuated by a

desire to win notoriety or cheap popularity.

The petitions of such busybodies deserve to be

thrown out by rejection at the threshold, and

in appropriate cases with exemplary costs.

11. The Council for Public Interest Law set up

by the Ford Foundation in USA defined "public

interest litigation" in its Report of Public

Interest Law, USA, 1976 as follows:

"Public interest law is the name that has

recently been given to efforts which provide

legal representation to previously

unrepresented groups and interests. Such

efforts have been undertaken in the

recognition that ordinary marketplace for legal

services fails to provide such services to

significant segments of the population and to

significant interests. Such groups and

3

interests include the proper environmentalists,

consumers, racial and ethnic minorities and

others." [See B. Singh (Dr.) v. Union of India7,

SCC p. 373, para 13.]

12. When a particular person is the object and

target of a petition styled as PIL, the court has

to be careful to see whether the attack in the

guise of public interest is really intended to

unleash a private vendetta, personal grouse or

some other mala fide object. Since in service

matters public interest litigation cannot be

filed there is no scope for taking action for

contempt, particularly, when the petition is

itself not maintainable. In any event, by order

dated 15-4-2002 this Court had stayed

operation of the High Court's order."

The aforesaid observations have been reiterated by this

Court in the case of P.Seshadri Vs. S.Mangati Gopal

Reddy & Ors8 , in the following words:-

"The High Court has committed a serious error

in permitting respondent No.1 to pursue the

writ petition as a public interest litigation. The

parameters within which Public Interest

Litigation can be entertained by this Court and

the High Court, have been laid down and

reiterated by this Court in a series of cases. By

now it ought to be plain and obvious that this

Court does not approve of an approach that

would encourage petitions filed for achieving

oblique motives on the basis of wild and

reckless allegations made by individuals, i.e.,

busybodies; having little or no interest in the

proceedings. The credentials, the motive and

the objective of the petitioner have to be

apparently and patently aboveboard.

8 2011 (4) SCALE 41

3

Otherwise the petition is liable to be dismissed

at the threshold."

23. We are, therefore, unable to

accept the aforesaid submission as it is tantamount to

treating the writ petition as a public interest litigation.

As noticed above, the entire grievance of the writ

petitioners/appellants was personal. They were all

aggrieved and humiliated for being compelled to serve

under a Principal junior to them in service. Therefore, it

could not be treated as a public interest litigation. This

Court has repeatedly disapproved the tendency of

disgruntled employees disguising pure and simple service

dispute as public interest litigation. The observations

made by this Court in the case of Dr. B. Singh vs.

Union of India & Ors.9 would be of some relevance and

we may notice the same. In paragraph 16, it is observed

as follows :

"As noted supra, a time has come to weed out

the petitions, which though titled as public

interest litigations are in essence something

else. It is shocking to note that courts are

flooded with a large number of so-called public

9 (2004) 4 SCC 363

3

interest litigations, whereas only a minuscule

percentage can legitimately be called as public

interest litigations. Though the parameters of

public interest litigation have been indicated

by this Court in a large number of cases, yet

unmindful of the real intentions and

objectives, courts at times are entertaining

such petitions and wasting valuable judicial

time which, as noted above, could be otherwise

utilized for disposal of genuine cases. Though

in Duryodhan Sahu (Dr) v. Jitendra Kumar

Mishra8 this Court held that in service matters

PILs should not be entertained, the inflow of

the so-called PILs involving service matters

continues unabated in the courts and

strangely are entertained. The least the High

Courts could do is to throw them out on the

basis of the said decision."

24. We are also unable to accept the submission of

Mr. Prashant Bhushan that the writ petition can be

treated as a writ in the nature of a quo warranto. It

appears that the appellants had not claimed a writ of quo

warranto either before the learned Single Judge or before

the Division Bench of the High Court. Even in this

Court, it appears to us that Mr. Prashant Bhushan has

made the submission as a weapon of last resort. As

noticed earlier, during the pendency of the proceedings,

respondent No. 3 has acquired the experience of sixteen

years. The requirement under Rules was of fifteen years

3

experience, it would, therefore, not be appropriate to go

into the question as to whether a writ of quo warranto

would lie in the present case or not. In our opinion, it

would be an exercise in futility. The issue has become

purely academic.

25. Before we part with this judgment, we make it clear

that we have not expressed any opinion on the

correctness of the High Court's judgment as we have

dismissed the appeal only on the ground that the

concerned appellants have already retired from service

and it would not be in the interest of anybody to go into

the merits.

26.In view of the above, the appeal is dismissed.

...................................J.

[B.Sudershan Reddy]

3

...................................J.

[Surinder Singh Nijjar]

New Delhi

April 18, 2011.

4