Governing Body Swami … vs Amar Nath Jha on 23 January, 2020


Supreme Court of India

Governing Body Swami … vs Amar Nath Jha on 23 January, 2020

Author: A.S. Bopanna

Bench: R. Banumathi, A.S. Bopanna, Hrishikesh Roy

                                                       NON­REPORTABLE



                                    IN THE SUPREME COURT OF INDIA


                                     CIVIL APPELLATE JURISDICTION


                                   CIVIL APPEAL NO. 580           OF 2020
                                (Arising out of SLP (Civil) No.20859 of 2019)



                         Governing Body Swami                    .…Appellant(s)
                         Shraddhanand College

                                                  Versus

                         Amar Nath Jha & Anr.                                   ….
                         Respondent(s)

                         With

                         Civil Appeal No.581/2020 @ SLP(C) No.20786/2019



                                            JUDGMENT

A.S. Bopanna,J.

Leave granted.

Signature Not Verified

Digitally signed by
MADHU BALA

2. The appellant in LPA No.694/2016 and CM Appln.
Date: 2020.01.23
14:46:38 IST
Reason:

No.46147/2016 – the University of Delhi is the appellant

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in the appeal arising from SLP(C) No.20786/2019 while

the respondent No.2 in the said LPA – Governing Body of

Swami Shraddhanand College is the appellant in the

appeal arising from SLP(C) No.20859/2019. In both these

appeals the appellants are assailing the judgment dated

09.05.2019 passed by the Division Bench of the High

Court of Delhi. By the said judgment the Division Bench

has upheld the order dated 10.11.2016 passed by the

learned Single Judge and dismissed the appeal

3. The respondent Dr. A.N.Jha was chosen by the

Selection Committee for appointment as the Vice­Principal

of the Swami Shraddhanand College. The same was

approved by the Governing Body and a letter was issued

on 29.12.2015. A communication dated 28.12.2015 was

addressed to the University of Delhi seeking approval for

the appointment made as Vice­Principal. The University of

Delhi however declined approval through its letter dated

13.01.2016. The respondent Dr. A.N. Jha, thus being

aggrieved by the refusal of approval approached the

learned Single Judge of the High Court of Delhi in WP(C)

No.965/2016 seeking that the letters dated 13.01.2016,

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19.01.2016, 27.01.2016 be quashed and direct the

University of Delhi to grant approval for his appointment

as the Vice­Principal of the College. The learned Single

Judge on making a detailed consideration through the

order dated 10.11.2016 allowed the writ petition.

4. In the said process the learned Single Judge has

taken note of the contents in the letter dated 13.01.2016

by which approval was declined by the University mainly

referring to the manner in which the College was

appointing the Acting Principal and further since the

selection of the Vice­Principal was made without seeking

prior approval as mandated under Clause 4(4) of

Ordinance XVIII of the University. The learned Single

Judge therefore took note of the letter dated 13.01.2016

and concluded that the non­approval by the University

was not justified inasmuch as the same does not record

that he was not fit for the job or was lacking in eligibility

criteria for being appointed as the Vice­Principal. The

reason indicated about non­compliance of Clause 4(4) of

Ordinance XVIII for not approving the appointment was

held unjustified, taking into consideration the procedure

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followed during the earlier appointments when approval

was granted post appointment. Hence, a direction was

issued to the University to grant approval.

5. The University claiming to be aggrieved by such

direction issued by the learned Single Judge filed the LPA

before the Division Bench. The College which is one of the

appellants herein did not choose to file the appeal before

the High Court and assail the order of the learned Single

Judge. The Division Bench apart from noticing the

reasons assigned by the learned Single Judge has also

taken note of the contents of the letter dated 13.01.2016

by which the University had refused approval for

appointment of the Vice­Principal. In that background,

reference was also made to Clause 7(3) of Ordinance XVIII

and the High Court concluded that the same does not

suggest that the post of Vice­Principal cannot be filled up

when the post of regular Principal is vacant.

6. The Division Bench keeping in view the contents of

Clause 7(3) of Ordinance XVIII has arrived at the

conclusion that there is no bar to appoint a person to the

post of Vice­Principal in the absence of a regular Principal.

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In that light the Division Bench on upholding the decision

of the learned Single Judge has also taken into

consideration the fact that the regular Principal had

superannuated way back on 31.12.2014 and there is no

regular Principal appointed till this date and as such

directed that the Governing Body of the College be formed

within one month and a decision be taken in that regard.

7. Shri Sachin Datta, learned Senior Advocate

appearing on behalf of both, the University as well as the

College has taken us through the sequence when one Dr.

Kundra who was the Principal had retired on 31.12.2014.

Subsequently the Principals have been appointed on the

acting basis and at present the senior most Professor Dr.

Prakash Vir Khatri is the acting Principal as there was no

regularly appointed Vice­Principal either. In that regard, it

is contended that the respondent Dr. A.N. Jha even if

appointed as the Vice­Principal cannot act as the

Principal. It is contended that the prayer in the petition

was to quash the communications assailed therein and as

such any further relief for Dr. A.N. Jha to act as the

Principal would not arise. Reference is made to the

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communication dated 2/3 February, 2016 addressed by

the University to the Governing Body of the College

indicating that a Committee is constituted to enquire as to

whether the Governing Body of the College is managing

the affairs in accordance with the Act, Statutes and

Ordinances of the University. The learned Senior

Advocate contends that the said letter has not been

assailed. The communication dated 2/3 February, 2016

is also referred to indicate that the Governing Body of the

College was not appropriately functioning and also the

manner in which Dr. A.N. Jha has been conducting

himself. In that regard, the learned Senior Advocate

would also refer to the minutes dated 29.02.2016 of the

expanded Governing Body of the College wherein the

Governing Body has taken note of the action of Dr. A.N.

Jha. The Resolution at Item No.2 therein is referred, under

which the members have recorded that Dr. A.N. Jha is

illegally holding the post of acting Principal and in that

view recommended the senior most eligible teacher i.e. Dr.

Prakash Vir Khatri to act as the Principal. It is his further

contention that Clause 4(4) of Ordinance XVIII provides

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that the Governing Body is required to secure prior

approval of the University to appoint a Vice­Principal. It is

contended that in the instant case no such prior approval

was taken and as such the University had rejected the

request.

8. Shri A.K. Thakur, learned Advocate representing

the respondent Dr. A.N. Jha, apart from seeking to sustain

the order passed by the learned Single Judge as also that

of the Division Bench of the High Court would submit that

the entire contention put forth by the learned Senior

Advocate for the appellants is misplaced. It is pointed out

from the prayer in the writ petition that the respondent

herein as the writ petitioner on seeking that the

communication rejecting the approval be quashed had

sought that a Mandamus be issued to the University to

accord approval for the appointment of the respondent

herein as Vice­Principal of the College. In that view, it is

contended that the entire case as put forth by the

appellants herein with reference to the appointment of

Principal would not be justified. The entitlement claimed

by the respondent in the writ petition is for appointment

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as Vice­Principal. If in that circumstance a vacancy

remains in the post of Principal and no appointment is

made, certainly the regulations would take care of such

situation and the appellants cannot raise any grouse. It is

contended that the learned Single Judge as well as the

Division Bench has adverted to that aspect and arrived at

a conclusion based on the issue that had arisen for

consideration. In that view, the order passed by the High

Court does not call for interference by urging contentions

which is extraneous to the case put forth by the

respondent herein. Insofar as the appointment of the

respondent as the Vice­Principal, the Governing Body had

taken a decision which was communicated to the

University forthwith. Hence any subsequent decision

taken by the enlarged Governing Body is only with a

malafide intention. In that circumstance, when a

recommendation was made it was for the University to

approve the same. The learned counsel would point out

that the Division Bench of the High Court in para 6 of its

order has taken note of all prior appointments made to the

post of Vice­Principal where, in most of the cases the

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approval has been granted post facto. In that view, it is

contended that these appeals are liable to be dismissed.

9. In the light of the rival contentions we have

perused the appeal papers. At the outset it is necessary to

observe that a consideration in these proceedings would

be based on the case that has been put forth by the writ

petitioner to the extent of the relief claimed therein and in

that light the consideration as made by the High Court

both by the learned Single Judge and the Division Bench

is to be noted to decide the correctness or otherwise of the

concurrent view taken by the High Court. To that extent,

as pointed out by the learned counsel for the respondent

herein, it is seen that the respondent herein as the writ

petitioner had assailed the communications by which the

University had declined approval to the post of Vice­

Principal in the appellant College. Having done so, the

consequential relief was sought to direct the University by

issue of Mandamus to accord approval to the appointment

of petitioner as Vice­Principal of the College. Though the

learned senior advocate for the appellants had contended

that the letter dated 2/3 February, 2016 has not been

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challenged in the writ petition, the same would not be of

any adverse consequence in the situation where the

respondent herein was before the Court limited to his

grievance and the relief sought in that regard. Through

the said communication though a reference is made to

indicate that the proposal to appoint Dr. A.N. Jha as the

Vice­Principal is not acceptable, it is only a passing

reference made therein while the University for the other

reasons had informed the Chairman, Governing Body of

the College that a Committee has been constituted to look

into the affairs of the College. If at all anybody is to be

aggrieved by the said communication, it is the Governing

Body itself which is also an appellant herein which should

have been aggrieved. Instead, a common contention is

being urged by the appellants who have conflicting

interest and the common contention to that effect is not

acceptable.

10. In that background, when an earlier decision had

been taken by the Selection Committee to appoint the

respondent Dr. A.N. Jha as the Vice­Principal and a letter

had been addressed to the University on 28.12.2015, the

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action of the University in rejecting such requests through

its communication dated 13.01.2016 was the issue which

was required to be examined by the High Court. To that

effect, both the learned Single Judge as also the Division

Bench referred to the procedure required for appointment

of the Vice­Principal. In that regard, it is seen that Clause

4(4) of Ordinance XVIII would indicate that the prior

approval from the University is required to be taken.

However, the tabular form extracted and taken note by the

Division Bench in para 6 of the order would indicate that

on most of the occasions the approval has been granted

post facto. It is in that light, it has been rightly held by

the High Court that the rejection in the present case on

the ground that there was no prior approval would not be

justified when the fact remains that the Governing Body

had considered the respondent to be suitable and the

respondent was not in any other manner ineligible. It is

no doubt true that when a procedure is contemplated the

same is required to be followed. However, in the present

fact the very manner in which the appellants have

proceeded to deny the benefit to the respondent would

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indicate that the action is not bonafide when the

respondent No.1 is not otherwise ineligible. As such in

that circumstance when the factual matrix herein

indicates that at the first instance the Governing Body had

resolved to appoint the respondent as the Vice­Principal

and had sent the communication for approval as far back

as on 29.12.2015 the subsequent developments should

not take away the right that has accrued to the

respondent.

11. Further, the subsequent resolution of the

expanded Governing Body of the College dated 29.02.2016

referred to by the senior advocate for the appellant would

indicate that the entire concern appears as an attempt to

stone wall the respondent Dr. A.N. Jha from acting as the

Principal and in furtherance of such intention the entire

action has been initiated so as to deny him even the

benefit of being the Vice­Principal to which he is entitled,

inasmuch as the appellants apprehend that the

respondent would otherwise become entitle to act as the

Principal in terms of the provision contained in Clause 7(3)

of Ordinance XVIII. The need for the Vice­Principal to act

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as the Principal would arise only if the appellants herein

do not take appropriate steps to appoint a Principal and if

the post of Principal remains vacant. If the appellants

have not taken steps to appoint a regular Principal in

accordance with the procedure, they are to blame

themselves and cannot victimize the respondent and

prevent him from functioning as a Vice­Principal, the post

to which he is entitled to by putting forth the issue of prior

approval as a ruse to decline approval. In fact, the High

Court has appropriately articulated this aspect of the

matter to arrive at its conclusion.

12. The very nature of the contentions put forth by the

learned senior advocate for the appellants with emphasis

on the aspect of acting Principal of the College and to

allege that if the respondent is appointed as the Vice­

Principal he would hinder the process of appointment of

the regular Principal would amount to putting the ‘cart

before the horse’. As already taken note the grievance

raised by the respondent No.1 herein at this point is with

regard to the appointment of Vice­Principal of the College

to which a right has accrued in favour of the respondent

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No.1 in view of the decision taken by the Governing Body

of the College which was already sent for approval to the

University. The correctness or otherwise of the same

being examined, the High Court has rightly held that the

rejection of approval is not justified. If that be the

position, the respondent would be entitled to be appointed

as the Vice­Principal.

13. Insofar as the post of Principal, it is for the

appellants to take a decision in that regard and appoint a

regular Principal. If such duty that is cast on the

appellant is not done and, in that circumstance, if the post

of Principal continues to remain vacant, it is only in such

event Clause 7(3) of Ordinance XVIII would come into play.

In such circumstance merely on the apprehension that if

the respondent becomes the acting Principal by virtue of

being the Vice­Principal, he would not allow the

appointment of the regular Principal is a contention which

is liable to be rejected. Therefore, in that circumstance if

all these aspects are kept in view the conclusion reached

by the High Court is justified and the same does not call

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for interference.

14. At this stage it is appropriate to keep in perspective

our interim order dated 08.01.2020 when these appeals

were heard and reserved for judgment. By considering the

interest of Institution it was observed that Dr. Prakash Vir

Khatri will continue as the acting Principal and the first

Respondent Dr. A.N. Jha will continue as the acting Vice­

Principal. In view of our conclusion as above, the

respondent No.1 is entitled to function as the regular Vice­

Principal for which the appellants shall take necessary

action. By the very order dated 08.01.2020 we had also

indicated that the appellants will initiate the process of

appointment of the regular Principal. We had further

expressed that it is desirable the appointment be made in

two months. Though on being appointed as Vice­

Principal, the post of Principal being vacant, the

respondent No.1 Dr. A.N. Jha would have the benefit

available under Regulation 7(3) noticed supra, we see no

reason to curtail the period given for appointment of

regular Principal and allow such benefit to respondent

No.1 at this stage itself as the interest of the Institution

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remains the primary concern. It is however made clear

that if no steps are taken by the appellants to appoint the

regular Principal, in such event, on expiry of the time

indicated the right would accrue to the first respondent to

act as regular Vice­Principal in terms of the impugned

order and other rights which he may be entitled in terms

of the Regulations.

15. The appeals stand dismissed accordingly. There

shall be no order as to costs. All pending applications

shall stand disposed of.

……………………….J.

(R. BANUMATHI)

……………………….J.

(A.S. BOPANNA)

New Delhi,
January 23, 2020

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