Dinesh Chandra Shukla vs State Of U.P .

CIVIL APPEAL NO. 1913 OF 2022 (Arising out of SLP (C) NO. 26763 OF 2015)

DINESH CHANDRA SHUKLA …APPELLANT(S)

VERSUS

STATE OF U.P. & ORS. …RESPONDENT(S)

JUDGMENT

V. RAMASUBRAMANIAN, J.

1. Aggrieved by the dismissal of his writ petition seeking to quash

an order of the Chancellor of the Mahatma Gandhi Kashi Vidyapeeth

University (hereinafter referred to as ‘the University’), rejecting his

request to be appointed as Lecturer (Karm Kand), the appellant is

before this Court.

2. We have heard the learned counsel for the appellant, the learned Signature Not Verified Digitally signed by R Natarajan Date: 2022.03.24 16:37:57 IST Reason:

counsel appearing for the Chancellor of the University, the learned

1 counsel for University itself and the learned standing counsel for the

State.

3. The brief facts necessary for the disposal of the above appeal are

as follows:­

(i) Vide order dated 22.10.1996, the State of U.P sanctioned

one post of Lecturer in ‘Karm Kand’ in the Department of

Sanskrit in the University, which is arrayed as the 5 th

respondent herein. The Chancellor of the University, the

Executive Council and the Vice Chancellor of the University

are arrayed separately as respondents 2 to 4 herein for

reasons not difficult to fathom.

(ii) It appears that one Shri Jai Prakash Pandey was initially

appointed to the said post and his services were also

regularised. But the regularisation of his services was set

aside by the High Court by an order dated 19.08.2006 in

Writ Petition No.35149 of 1999.

(iii) Thereafter, the appellant herein was engaged by the

University as a Guest Lecturer to teach ‘Karm Kand’ to the

students in the Department of Sanskrit. The remuneration

2 payable to him was fixed at Rs.250/­ per lecture subject to

a maximum of Rs.5,000/­ per month.

(iv) A proposal to fill up the post on regular basis was

submitted by the Head of the Department of Sanskrit on

16.10.2006. It was approved by the Vice­Chancellor on

18.10.2006. Pursuant thereto, the University issued an

advertisement bearing Advertisement No.2 of 2006, inviting

applications for appointment to one post of Lecturer in

‘Karm Kand’. The advertisement also contained invitation

for applications for various other posts in various

departments. We are not concerned in this case with the

posts in other departments for which applications were

invited in the same advertisement. Suffice it to say that

applications were invited for appointment to 8 posts of

lecturers in various subjects, one of which was for

appointment to the post of Lecturer in ‘Karm Kand’.

(v) Unfortunately, a controversy erupted, when the then

Chancellor of the University issued an oral order restraining

the Vice­Chancellor from convening the meetings of

3 Selection Committees pursuant to the aforesaid

advertisement, on the ground that the Vice­Chancellor was

due to retire on 31.12.2007. But the High Court, by an

order dated 04.10.2007 passed in a writ petition, made it

clear that statutory functions performed by the Vice

Chancellor cannot be put on hold by oral orders of the

Chancellor. Thereafter, a written order was issued by the

Chancellor on 14.12.2007. However, the said order was

challenged in another writ petition and the same was stayed

by the Allahabad High Court, paving the way for the

Selection Committees to proceed further pursuant to the

Advertisement No.2 of 2006.

(vi) As a consequence, the Selection Committees in respect of

various posts held meetings and made recommendations.

Some of these recommendations were accepted by the

Executive Council by its Resolution dated 24.12.2007.

(vii) Since the Vice­Chancellor retired in the meantime before

the recommendations were implemented, a batch of writ

petitions came to be filed. A spate of interim orders came to

4 be passed pursuant to which the Executive Council decided

to refer the recommendations of the Selection Committees

to the Chancellor under the proviso to Section 31(8)(a) of

the U.P. State Universities Act, 1973.

(viii) In the case of the appellant, the Selection Committee had

recommended his candidature for appointment to the post

of Lecturer in ‘Karm Kand’. But the Executive Council

disagreed with the Selection Committee on the ground that

the Vice­Chancellor failed to request the Chancellor to

nominate subject experts in the Selection Committee. It is

relevant to note here that the Selection Committee

shortlisted only two persons, one of whom was the

appellant and other Dr. Jai Prakash Pandey. The said Dr.

Jai Prakash Pandey had secured only 49.2% marks as

against the minimum prescription. Therefore, he was not

issued with any interview call letter.

(ix) Agreeing with the decision of the Executive Council, the

Chancellor passed an order dated 23/28.12.2010 annulling

5 the recommendation made by the Selection Committee for

the appointment of the appellant.

(x) The appellant challenged the said order of the Chancellor by

way of a writ petition in Writ Petition No.6389 of 2011. By

an Order dated 02.12.2011, the said writ petition was

allowed and the matter remanded back to the Chancellor.

The reason why the matter was remanded back to the

Chancellor was that admittedly there was no University in

the country awarding a post graduate degree in ‘Karm Kand’

and that, therefore, there were actually no experts in the

subject of ‘Karm Kand’, as sought to be projected by the

Chancellor. Since the question whether subject experts

were at all available in the field of ‘Karm Kand’ went to the

root of the matter, the High Court thought fit to remand the

matter back to the Chancellor.

(xi) Pursuant to the aforesaid direction, the Chancellor

considered the matter and passed a fresh order dated

24.08.2012, rejecting the recommendation of the Selection

Committee. This order was challenged by the appellant by

6 way of a fresh writ petition in Writ Petition No.63137 of

2012. By the Order dated 14.05.2015 impugned in this

appeal, the Division Bench of the Allahabad High Court

dismissed the writ petition of the appellant on the ground

that after the order of remand, the Chancellor had

consulted a few experts and found that the subject of ‘Karm

Kand’ is altogether different from the subject Sanskrit and

that therefore, with the qualifications that the appellant

possessed, he could not have been selected for

appointment. It is against this order of the High Court that

the appellant is before us.

4. Before we proceed to consider the core issue arising for

consideration, we are obliged to take note of the fact that admittedly

the appellant was engaged as a Guest Lecturer on remuneration of

Rs.250/­ per lecture subject to a maximum of Rs.5000/­ per month

from the year 2006. Ever since then the appellant has been teaching

students undergoing a one year diploma course in ‘Karm Kand’ for the

past nearly 16 years.

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5. The next thing we have to take note of before we take up for

consideration the issue arising in the above appeal, is that the

appellant, and perhaps the entire selection process undertaken in

2006 by the University, became victims of the crossfire between the

Chancellor and the Vice­Chancellor. Admittedly, the post was

originally filled up by a person who was actually the purohit to the

then Governor of State of Uttar Pradesh. But his appointment was set

aside by Allahabad High Court by an order dated 19.08.2006. It is

only thereafter that Advertisement No.2 of 2006 came to be issued,

inviting applications for appointment to the post.

6. But it is of interest to note that the advertisement did not specify

particularly that a candidate applying for the post of Lecturer in ‘Karm

Kand’ should hold a Master’s Degree in ‘Karm Kand’. In fact the order

of the Chancellor dated 24.08.2012 which became the subject matter

of the writ petition, specifically concedes as follows: “there is no

mention of the subject Karm Kand in the Statutes of the Mahatma

Gandhi Kashi Vidyapeeth nor any Ordinance under Section 51/52 nor

any Regulations under Section 53 of the U.P. State Universities Act,

1973. The order of the Chancellor only relied upon Statute 11.01(1) of

8 the University First Statutes, 1977, which stipulated that the minimum

qualifications required for appointment to the post of Lecturer in the

University or a Master’s Degree or equivalent degree in relevant subject

with at least 55% marks and consistently good academic record and

NET or Ph.D. degree”.

7. In his order dated 24.08.2012, the Chancellor held that the

appellant did not hold a Master’s degree in ‘Karm Kand’. But before he

came to such a conclusion, the Chancellor as well as the High Court

ought to have verified (i) whether the Statutes prescribed any specific

qualifications necessary for appointment to the post of Lecturer in

‘Karm Kand’; and (ii) if not, what should be considered as “relevant

subject and by whom”.

8. It must be pointed out at this stage that in the first instance, the

Executive Council took a stand that the selection of the appellant was

vitiated primarily on account of non­inclusion of subject experts in the

field of ‘Karm Kand’. The appellant was not held by the Executive

Council to be a person not possessing the prescribed qualifications for

appointment. This is why the order of remand passed by the High

Court on 02.12.2011 specifically directed the Chancellor to consider

9 whether or not there were subject experts in ‘Karm Kand’ to be

included in the Selection Committee. Instead of confining himself to

the said question, the Chancellor seems to have taken the opinion of

one Professor Gaya Ram Pandey, Head of the Department of Sanskrit

to come to the conclusion that ‘Karm Kand’ and Sanskrit are two

separate subjects and that while ‘Karm Kand’ is a practical subject,

Sanskrit is not. The said Professor Gaya Ram Pandey also seems to

have provided information to the effect (i) that a few universities such

as Banaras Hindu University, Sampurnanand Sanskrit University,

Lucknow University, and Lal Bahadur Shashtri Rashtriya Sanskrit

Vidyapeeth have included ‘Karm Kand’ as a subject in their courses;

and (ii) that, however, according to the information from the Registrar

of Lal Bahadur Shashtri Rashtriya Sanskrit Vidyapeeth, there is no

post of Lecturer in ‘Karm Kand’. In his order dated 24.08.2012 the

Chancellor also recorded that certain universities teach the subject of

Karm Kand/Paurohitya and provide degrees like Acharya (M.A) and

Vidyavaridhi (Ph.D.).

9. Obviously the consultations made by the Chancellor with certain

persons and the information gathered by him before passing the order

10 impugned before the High Court, were beyond the scope of order of

remand passed by the High Court. The information collected by the

Chancellor not only enlarged his original objections to the selection of

the appellant but was also gathered behind the back of the appellant.

10. In the course of hearing of the above appeal, we raised a pointed

query to Shri Sandeep D. Das, learned counsel appearing for the

University as to whether the Statutes of University prescribed any

specific qualifications for appointment to the post of Lecturer in ‘Karm

Kand’ or at least whether Advertisement No.2 of 2006 indicated the

qualifications. He had no alternative but to concede that the statutes

do not contain any prescription regarding the post of Lecturer in

‘Karm Kand’. He also conceded that the advertisement did not indicate

any specific qualification except that the aspirant should hold a post

graduate degree in the relevant subject.

11. In the absence of any specific prescription, the University ought

to have referred the question of what constitutes relevant subjects,

before the process of selection began. Neither the University nor the

Chancellor took a stand in the first instance that the appellant was

not qualified in the “relevant subject”. Their initial objection was that

11 the Selection Committee did not include the subject experts

nominated by the Chancellor. After it was pointed out that there were

no subject experts in ‘Karm Kand’, as no University was offering a

specific course in ‘Karm Kand’, the High Court thought fit to remand

the matter back to the Chancellor, to ascertain whether subject

experts were actually available and whether the failure of the Vice

Chancellor to seek nomination of such experts from the Chancellor

vitiated the whole process. Finding that the answer to the said

question was too difficult to be provided, the Chancellor went on a

detour to find out what are the differences between the subject of

Sanskrit and the subject of ‘Karm Kand’. This was clearly erroneous

and the High Court unfortunately omitted to notice this mistake.

12. Admittedly, the appellant has been teaching ‘Karm Kand’ for the

past nearly 16 years in the same University. Though the learned

counsel for the University stated that his continuance was on account

of an interim order of status quo passed by this Court, we notice that

the interim order of status quo was passed only on 14.09.2015.

Unless the appellant was continuing as on that date, the order of

status quo would have meant nothing for him.

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13. The parameters to be applied to a case where an incumbent to a

post does not fulfil the qualifications prescribed for a post, are

different from the parameters to be applied to a case where no specific

qualifications are prescribed for a particular post. The question as to

what constitutes “relevant subject” should have been left to the

experts, before the advertisement was issued, especially when the

statutes did not prescribe any specific qualifications. This did not

happen in this case. In fact the question whether subject experts were

available at all in ‘Karm Kand’, itself became a matter of controversy.

The entire controversy appears to have arisen as a result of the tug of

war in the year 2006 between the then Chancellor and the then Vice

Chancellor, making the appellant a victim in the line of fire.

Unfortunately, the High Court omitted to take note of all this.

14. The expression “equivalent qualifications” has a different

connotation than the expression “relevant subject”. In Punjab

University vs. Narinder Kumar and Others1, this Court was

concerned with the interpretation of the expression “relevant subject”.

But in that case the advertisement itself prescribed “the essential

1 (1999) 9 SCC 8

13 qualifications” under one head and “desirable specialisation” under

another head. Therefore, this Court found that though the words

“relevant subject” did not throw any light on the question as to what

are the relevant subjects for the post of a Lecturer in any specified

subject, the column dealing with “desirable qualifications” threw light

upon what was relevant. Therefore, cases in which a clue is available

in the advertisement itself may stand on a different footing than cases

where there is no such clue.

15. In Ganapath Singh Gangaram Singh Rajput vs. Gulbarga

University2, this Court was concerned with a case where applications

were invited for appointment to the post of Lecturer in MCA, from

candidates holding a post graduate degree in the “relevant subject”.

As a matter of fact, this Court found that candidates with Masters’

degree in Computer Applications were available, but a candidate with

Masters’ degree in Mathematics was selected. This Court found fault

with the decision of the Board of Appointment in selecting the

candidate with a Master’s degree in Mathematics with a flawed

reasoning that Mathematics is one of the subjects taught in MCA.

2 (2014) 3 SCC 767 14

16. In the case on hand no candidate was available with a post

graduate degree in ‘Karm Kand’ and the Selection Committee which

comprised of a representative of the Department of Sanskrit found the

appellant to possess a Master’s degree in the relevant subject. The

appointment itself was to the post in the Department of Sanskrit.

17. In fact, during the pendency of the writ petition before the High

Court, the Academic Council of the University held a meeting on

22.08.2013. Agenda No.10 for the said meeting related to the

qualifications for appointment to the post of Lecturer in ‘Karm Kand’.

The recommendation made by the Head of the Department of Sanskrit

was accepted by the Academic Council. Agenda Item No.10 of the said

meeting of the Academic Council reads as follows:

“Agenda No.10: Recommendations of Department of Sanskrit. Prof Uma Rani Tripathi Head of the Department, Department of Sanskrit gave the information related to the recommendation of the Department of Sanskrit by apprising that the Academic Qualification of the Karm Kand and for the post of Professor of Sanskrit be kept one and the same as well as the Specialized experience of karm kand be stipulated as compulsory which was passed unanimously”

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18. If only the High Court had looked into the minutes of the

meetings of the Academic Council it could have easily appreciated that

the appellant was entitled to succeed.

19. Under Section 25(1)(c) of the U.P. University Act, the Academic

Council is empowered to advise the Executive Council with regard to

the qualifications required to be possessed by persons imparting

instructions on particular subjects. Therefore, the minutes of the

meetings of the Academic Council dated 22.08.2013 has clinched the

issue in favour of the appellant. Hence it is time for the University to

put an end to this ‘Yuddh Kand’ and allow the appellant to move from

‘Karm Kand’ to ‘Karm Phal Kand’.

20. Therefore, the appeal is allowed, the impugned order of the High

Court is set aside and the writ petition filed by the appellant before the

High Court is allowed, as prayed for. In view of the fact (i) that the

appellant has been teaching the very same subject for the past nearly

16 years; and (ii) that the original Selection Committee which found

him eligible for appointment, comprised of Professors from the

Department of Sanskrit of which the diploma course in ‘Karm Kand’

16 was a part, a direction is issued to the 5 th respondent­University to

regularise the services of the appellant. There shall be no order as to

costs.

…………………………….J. (Hemant Gupta)

…………………………….J. (V. Ramasubramanian)

New Delhi March 24, 2022.

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