G. Varandani vs Kurukshetra University & Anr

CIVIL APPEAL NO. /2003 [Arising out of S.L.P. (C) No.22833/1997]

& CIVIL APPEAL NO. /2003 [Arising out of S.L.P. (C) No.21612/1997]

RAJENDRA BABU, J.:

Special leave granted in S.L.P.(C) Nos.22833 and 21612 of 1997.

The above appeals have been filed by one or the other of the parties

before the High Court against the decision rendered in this group of cases. So

far as C.A. No.8703/1997 is concerned, it is against the decision in CWP

No.15256/96, which came to be disposed of on 5.8.1997 by an order, "For

orders, see C.W.P. No.18312 of 1996". While dealing with the case in CWP

No.18312/96, the Division Bench made the observation even at the threshold

that the said judgment shall dispose of Civil Writ Petition Nos.14263, 16256,

16005 and 18312 of 1996 as the question of law canvassed is identical and the

facts alone are taken from CWP No.18312/96 filed by one Sunil Deshta.

C. A. No.8703/97 : This is against the order in CWP No.15256/96.

As on 21.1.1994 the appellant in this appeal was serving as a confirmed

Reader in the Faculty of Law of Kurukshetra University, when he applied for

selection to the post of Professor at the Kurukshetra University Post Graduate

Regional Centre, Sirsa, in terms of advertisement issued inviting applications

therefor on 27.7.1994, this appellant was said to have been selected as a

Professor for the Law Faculty Centre at Sirsa and was placed incharge of the

Centre, by their regular appointment letter dated 15.8.1994 placing on probation

for a period of one year with effect from the date of joining. The pay scale

offered and the allowances admissible as per the University Rules for Post

Graduate Regional Centre Sirsa/Hissar, etc., were also indicated therein. While

so, on 29.12.1995 the appellant came to be appointed as Dean, Faculty of Law,

at the said Centre for a term of three years w.e.f. 1.1.1996 to 31.12.1998. On

2.7.1996, it appears that the appellant's conformation as Professor in charge of

Law at Sirsa was postponed and the appellant was allowed to keep his lien on

the substantive post of Reader in the Faculty of Law at Kurukshetra. On

16.8.1996, the Government of Haryana, in exercise of powers under Section 4 of

the Kurukshetra University Act, 1986, excluded the Sirsa Centre from its

jurisdiction and on 19.8.1996, the Kurukshetra University issued a Notification

that in terms of the Haryana Government Notification, the Sirsa Centre stood

transferred to the Guru Jambheshwar University, Hissar, w.e.f. 26.7.1996. There

is no dispute over the fact that the posts of the Sirsa Centre were also transferred

to the jurisdiction of the new University at Hissar by the operation of Section 35 of

the G.J. University Act, 1995. This appellant seems to have made

representations on 19.8.1996 and again on 17.8.1996 to the authorities of the

Kurukshetra University about his status and claim that he continued to be an

employee of Kurukshetra University and, therefore, ought to be taken back as

Professor in the main Faculty of Law of which he claimed to be an integral part

under the Kurukshetra University Act and Statutes made therein. When the

appellant was informed that he should first get himself relieved of his charge at

Sirsa Centre from the G.J. University to enable him to join as a Reader in the

Faculty of Law, Kurukshetra University at Kurukshetra. It is at this stage the Writ

Petition No.15256/96 seems to have been filed not only to quash the relevant

proceedings, but also for a direction to the Kurukshetra University to take back

the appellant as Professor, Department of Law, with continuity of service with all

consequential benefits.

The first respondent-Kurukshetra University contested the claim

contending that the post advertised was specifically for the Post Graduate

Regional Centre at Sirsa, to which the appellant was recruited and was not

meant for the Department of Law at the University Campus, Kurukshetra; that the

appellant was not confirmed in the said post and having regard to the sanctioned

strength of Professors in the Department of Law at Kurukshetra, the appellant

could not be taken back as Professor and as informed on 28.8.1996 he was at

liberty to join his substantive post of Reader, which he held. It was also pointed

out when one of the posts of Professors fell vacant and the appellant applied for

the same and interviews were held for the purpose, he was found not fit to be

even included in the panel of four persons prepared then and one Dr. V.K.

Aggarwal, who was number one in the merit panel, was appointed on 12.8.1994.

It was also contended that the law classes held at Sirsa would not show that the

said Centre was part of the Department of Law at Kurukshetra. In the light of the

Guru Jhambeshwar University Act, 1995 and transfer of the Post Graduate

Regional Centre at Sirsa to the said University located at Hissar, the claim of the

appellant was untenable, as noticed earlier. Applying the principles laid down in

other common judgment, this Writ Petition came to be dismissed. Hence, the

said appeal.

C. A. No.1272/98 : This appeal filed by the Kurukshetra University against

the order passed in CWP No.7457 of 1997 on 3.10.1997.

The respondent was appointed by a letter dated 7.9.1994 as a Lecturer in

Law for the K.U. Post Graduate Regional Centre at Sirsa/Hissar, subject to the

terms and conditions specified therein. Applications also were invited separately

for the posts at Kurukshetra and the P.G. Centres at Sirsa/Hissar. Though it

appears that simultaneously selections were held for the post of Lecturer in the

Department of Law at Kurukshetra as well as the Post Graduate Regional Centre

at Sirsa/Hissar, this respondent applied only for the post at P.G. Centre not for

the Department of Law in the Campus of Law in the Kurukshetra University and

his claims were considered and selected for the P.G. Centre only. On the

passing of the Guru Jambeshwar University Act, 1995 and notified on 22.9.1995

the said University came into being and Section 35 of the said Act provided for

the transfer of the Regional Centre at Hissar and Sirsa and the courses run

thereunder and the posts created and filled therefor with the properties, etc

relating thereto at the commencement of this Act to vest in the new University

and thereby not only the Hissar Centre came within the scope and jurisdiction of

the Guru Jambeshwar University Act, 1995, but he had also been paid salary

only from the Guru Jambeshwar University from November, 1995 onwards. The

respondent herein on 7.4.1997 submitted a representation to the appellant-

University that he be adjusted/absorbed in the Department of Law of Kurukshetra

University, at Kurukshetra, and when it was rejected on 5.5.1997 he filed C.W.P.

No.7457/97 to quash the same and absorb him in the appellant-University. The

Division Bench (different from the one which rendered the earlier decision) which

heard the Writ Petition separately on 3.10.1997, while adverting to the decision

dated 5.8.1997 of the earlier Division Bench in CWP No.18312/96, summarily

seem to have allowed the Writ Petition in the same terms as in the above-said

decision without even considering which portion of the said judgment applied to

this case. Hence, the respondents before the High Court have come on appeal.

C.A. No…………../2003 [Arising out of SLP ( C) No.21612/97] : This appeal

has been filed by the Writ Petitioner in CWP No.14263/96 before the High

Court, which came to be decided against him by the order dated 5.8.1997.

The appellant in this appeal has been working as Lecturer in Law in the

Kurukshetra University at Kurukshetra. In 1993, the Post Graduate Regional

Centres were created at Hissar and Sirsa and one post of Reader in Law and two

posts of Lecturers in Law were created for the Post Graduate Regional Centres

at Hissar and Sirsa on 21.1.1994 and pursuant to the advertisement and

application of this appellant for the post of Reader in the P.G. Centre, this

appellant was appointed by a letter dated 31.12.1994 as the Reader in Law for

K.U. Post Graduate Regional Centre, Sirsa/Hissar, subject to the terms and

conditions specified therein and was placed on probation for a period of one year

indicating therein that if the work is not found satisfactory, he will be reverted to

the substantive post of Lecturer, Department of Law, and also directing to give an

Undertaking in the form of an Affidavit that he will serve at the P.G. Regional

Centre, Hissar/Sirsa. As in the other cases, with the formation of the new Guru

Jambeshwar University and the transfer of the P.G. Regional Centres to the new

University by the operation of the statutory provisions contained in Section 35 of

the Act and the exclusion of the Centre at Sirsa by the Kurukshetra University

from its territorial jurisdiction, this appellant has prayed that he may be allowed to

continue his services with Kurukshetra University. This appellant was informed

that if he gets relieved from the new University, he might join as Lecturer in Law

in the substantive post held by him prior to the selection as Reader in Law at the

P.G. Centre. This resulted in the appellant filing the above noticed Writ Petition

and the same was contested by the University as in the other cases, raising

identical grounds. This Writ Petition came to be dismissed by the common order

noticed above. Hence, this appeal.

C.A. No. /2003 [Arising out of SLP ( C) No.22833/97]: This is

against the order in CWP No.16005/96.

This appeal has been filed against the common order made on 5.8.1997

dismissing the Writ Petition filed by the appellant claiming relief against the

Kurukshetra University, to quash the order allowing to join back in the University

as Lecturer and for a direction to take him back as Reader in the Law

Department of the University at Kurukshetra. This appellant joined the

Kurukshetra University on 2.1.1979 as Research Assistant in Law in the Law

Department; that on 1.10.1984 he joined as a Lecturer in the Law Department,

Kurukshetra University, Kurukshetra, and was working as such till 1994. When

pursuant to the advertisement issued, as in the other cases, he applied and was

selected and appointed by a letter dated 12.8.1994 as Reader at the P.G.

Regional Centre, Sirsa/Hissar, subject to the terms and conditions specified

therein. As in the other cases with the constitution of the new Guru Jambeshwar

University and by the operation of the statutory provisions, the PG Regional

Cetnres with the respective posts and properties attached thereto, stood

transferred to the new University and when the appellant wanted to join the

Kurukshetra University and continue therein he was informed that if he gets

relieved from the other University, he could join and that too only as Lecturer

which was the substantive post he held and not as Reader. On this, the

appellant filed a Writ Petition seeking similar relief as in the other cases, which

was seriously contested on the same lines by the University and the Writ Petition

filed by the appellant came to be ultimately dismissed. Hence, this appeal.

Heard the learned counsel appearing on either side. It is necessary to

place on record that C.A. No.8702 of 1997 filed in this Court by the Kurukshetra

University against the decision in CWP No.18312 of 1996 – the decision in which

the claims in all those CWPs dealt with by the Division Bench of the High Court

came to be considered in the light of the fact situation in that case relating to one

Sunil Deshta, came to be dismissed as having become infructuous on account of

the Writ Petitioner/respondent in this Court leaving the employment of the

appellant and having joined Shimla University.

Whereas the learned counsel for the Kurukshetra University challenged

the judgments insofar as it went against it, the contesting private respondents,

who were petitioners before the High Court, reiterated their stand before the High

Court, by contending that inasmuch as they were selected and appointed at the

PG Centres only by the Kurukshetra University, their employer is only the said

University and they cannot, therefore, against their will and without their consent,

be transplanted into the new GJ University, be it by the provisions contained in

the enactment which constituted the said University and provided for the transfer

of the PG Centres at Sirsa/Hissar with the employees for the time being, the

properties etc., attached thereto. Strong reliance is placed upon the very

decision in Jawaharlal Nehru University Vs. Dr. K.S. Jawatkar & Ors. [(1989)

Suppl. (1) SCC 679], which was relied upon by the Division Bench of the High

Court to grant relief in favour of the petitioners in CWP No.18312 of 1996 and

also deny relief for the others. Before us benefit of it was claimed on behalf of

the appellant in C.A. No.1272 of 1998, as well. The learned counsel for the

Kurukshetra University sought to distinguish the earlier decision of this Court in

Jawaharlal Nehru University case (supra) as not applicable to the cases on hand

and also urged that in view of the very observations contained in Para 8 of the

said decision and the offer made by the Kurukshetra University in these cases,

no relief could have been accorded to the petitioners in CWP Nos.18312/96 and

7457/97 as well and those Writ Petitions also ought to have been dismissed by

the High Court.

We have carefully considered the submissions of the learned counsel on

either side. On going through the decision in Jawaharlal Nehru University case

(supra), it could be seen that the case therein related to the claims of a person

and his service – on being appointed as Assistant Professor on regular basis and

whose services were said to have been confirmed also, as such w.e.f. 29.8.1979

but the decision to transfer to another University in that case was taken on

31.3.1981. Even in such a case, it has been held as follows:-

"Inasmuch as the transfer of the Centre at Post-Graduate Studies

from the appellant University to the Manipur University could not

result in a transfer of the employment of the respondent from the

one to the other, it must be concluded that the respondent

continues in the employment of the appellant University. The

transfer of the Centre of Post-Graduate Studies to the Manipur

University may be regarded as resulting in the abolition of the post

held by the respondent in the appellant University. In that event, if

the post held by the respondent is regarded as one of a number of

posts in a group, the principle "last come, first go" will apply, and

someone junior to the respondent must go. If the post held by him

constitutes a class by itself, it is possible to say that he is surplus to

the requirements of the appellant University and is liable to be

retrenched. But it appears that the respondent has been adjusted

against a suitable post in the appellant University and has been

working there without break during the pendency of this litigation,

and we cannot, therefore, permit the appellant University to

retrench him."

[Emphasis supplied]

So far as the cases of the appellants in C.A.Nos.8703/97 and the other

private appellants other than University are concerned – the Division bench itself

chose to deny the relief that was granted to the writ petitions in CWP No.18312

of 1996 for the reason, apparently that they applied and got appointments to the

posts specially created for the PG Centres at Sirsa/Hissar, though for higher

positions but those persons not only remained probationers in such posts but

also retained their lien in and over the posts of which they were permanent

incumbents in the Department of Law at the University Campus at Kurukshetra

and could not be either regularized or made permanent in the posts held by them

at the PG Centres by the time the GJ University came to be constituted and by

operation of Section 35 of the said enactment relating to the said University, the

PG Centres at Sirsa/Hissar stood transferred to the new University with all

properties and personnel including those Writ Petitioners w.e.f. 26.7.1996. This

change could not be said to have been brought about with any ulterior or sinister

motive and the result and abolition of such posts so far as Kurukshetra University

was not bona fide or illegal. The appeal by the University in C.A.No.8702/97 in

respect of one person, who was granted relief (petitioner in CWP No.18312 of

1996), has been rendered infructuous and it became unnecessary to consider

the correctness of the decision relating to the grant of relief therein. Yet another

person, to whom relief was granted by another Division Bench merely following

the decision in the other case without even any proper or objective consideration

as to which class or category the claimant therein belonged, is the respondent in

C.A. No.1272 of 1998 and it becomes necessary to consider the correctness of

the same.

There can be no controversy over the position that the posts, which were

advertised, to which the applications were made and got appointed by all those

who were before court, were for the PG Centres at Sirsa/Hissar only, though

those Centres were under the control of the Kurukshetra University at the

relevant point of time. Indisputably, those Centres by the creation of a new

University and by the operation of the statutory provisions stood transferred to

the newly created University, in their entirety and they went even outside the

territorial limits and jurisdiction of the Kurukshetra University. The Division Bench

judgment in C.W.P. No.18312 of 1996 itself noticed the distinguishing features

between the case of Sunil Deshta on the one side and the rest of them on the

other hand, while rejecting the claims of others by observing as follows :-

"After examining the matter from all conceivable angles, we are of

the view that the stand taken by the Kurukshetra University is apt in

the given circumstances. Each one of the aforesaid petitioners

applied to the post/posts advertised for Post Graduate Regional

Centre at Sirsa/Hissar. Even in their appointment letters, it was

mentioned that each one of them will have to serve at these

Centres. Since the Centres have now been transferred to the Guru

Jambeshwar University, even the purpose for which these Centres

have been set up has ceased on account of ambit of activities of

the Guru Jambeshwar University. In such a circumstance, the

petitioner at best could lay a claim to the post which he was holding

before he applied for any post at Post Graduate Centre. Thus, we

do not find any merit in any of these writ petitions."

The said principle, which has our approval, squarely applies and governs

the appeals in favour of the Kurukshetra University and against the private party

appellants. Even the principles laid down in Jawaharlal Nehru University case

(supra) does not help the private party appellants and respondent in C.A.

No.1272/98 to be granted any relief in their favour. It cannot be stated, nor is it

the claim, in these appeals any of the juniors of the appellants and of the

respondent in C.A. No.1272/98 are retained in service in violation of the `last

come, first go' principle, which has been held to apply to cases of the nature in

these appeals, by this Court even in Jawaharlal Nehru University case (supra).

The High Court could not have granted any relief to any of these class of persons

against the Kurukshetra University and relief granted by a summary order without

any application of mind to the respondent in C.A. No.1272 of 1998 cannot be

sustained, at all.

For all the reasons stated above, C.A. No.1272/98 shall stand allowed and

the remaining appeals shall stand dismissed. In cases where the Kurukshetra

University allowed those persons to join on the basis of their lien, the University

may consider whether any pay protection or to what extent such protection may

be extended, as per the rules in force. We say nothing on it but leave it to the

University Authorities. No costs.