Pooran Chand vs Chancellor on 29 January, 2021


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Supreme Court of India

Pooran Chand vs Chancellor on 29 January, 2021

Author: Ashok Bhushan

Bench: Ashok Bhushan, R. Subhash Reddy, M.R. Shah

                                                                                REPORTABLE

                                    IN THE SUPREME COURT OF INDIA
                                     CIVIL APPELLATE JURISDICTION

                                CIVIL APPEAL NOS.268-269 of 2021
                         (arising out of SLP(C)Nos.17665-17666 of 2019)


          POORAN CHAND                                                   ...APPELLANT(S)

                                                    VERSUS

          CHANCELLOR & ORS.                                             ...RESPONDENT(S)



                                            J U D G M E N T

ASHOK BHUSHAN, J.

Leave granted.

2. These appeals have been filed challenging the

Division Bench judgment of High Court of Judicature

at Allahabad, Lucknow Bench dated 12.04.2018 by which

writ petition filed by respondent No.4 has been

allowed and the order of the Chancellor dated

08.07.2009 rejecting the representation made by

respondent No.4 was set aside.

Signature Not Verified

3.
Digitally signed by
ARJUN BISHT
Brief facts of the case for deciding these
Date: 2021.01.29
14:20:49 IST
Reason:

appeals are:

1
3.1 King George Medical University is a Medical

University under the by U.P. Act No.8 of 2002

namely the King George Medical University

Act, Uttar Pradesh Act, 2002. An

advertisement dated 15.03.2005 was issued by

U.P. King George’s University of Dental

Sciences, Lucknow (hereinafter referred to as

“University”) inviting applications for the

post of Professors, Associate Professors,

Asstt. Professors and Lecturers.

3.2 The appellant made an application for

appointment on the post of Assistant

Professor whereas respondent No.4 made an

application for appointment on the post of

Lecturer. Both the appellant and respondent

No.4 were considered by the same Selection

Committee and recommendations of the

Selection Committee were approved by

Executive Council in its meeting dated

08.08.2005 approving the appointment of

appellant as Assistant Professor and that of

respondent No.4 as Lecturer. The appellant,

2
who was working as Assistant Professor in BRD

Medical College, Gorakhpur after obtaining

permission from State of U.P. joined as

Assistant Professor on 08.12.2005.

3.3 The respondent No.4 submitted his joining as

Lecturer on 08.08.2005. The respondent No.4

was promoted on the post of Assistant

Professor on 08.08.2007 after completing

three years experience. The representations

were submitted by respondent No.4 to the

University claiming seniority over the

appellant. A representation was addressed by

respondent No.4 to the Chancellor dated

13.02.2009 regarding the appointment and

claim of seniority as Assistant Professor in

the University. The respondent No.4 claimed

that his experience at the time of

appointment as Senior Research Fellow in

W.H.O. was not considered. His representation

to the Chancellor principally claimed

seniority over appellant based on his

experience claiming that he has also

3
completed requisite experience at the time of

his appointment on the post of Assistant

Professor.

3.4 The Chancellor vide his order dated

08.07.2009 rejected the representation made

by respondent No.4. The Chancellor in his

order referred to the report sent by the

University that experience of the appellant

as Senior Research fellow in W.H.O. cannot be

counted as experience. Aggrieved by the

order of the Chancellor dated 08.07.2009

rejecting his claim, the respondent No.4

filed a writ petition being Writ Petition

No.1350(SB) of 2009 praying for following

reliefs:-

“i. Issue a writ of certiorari
quashing the impugned order
dated 08.07.2009 passed by
Opp. Party No.1 and impugned
appointment order dated
08.08.2005 of OPP. Party no.4
as Asstt. Professor contained
in Annexure No.1 & 2 to the
writ petition.

ii. issue a writ of mandamus /
prohibition commanding the
OPP. Party No. 1 to 3 to
revert, back the OPP. Party

4
NO.4 from the post of Asstt.

Professor and post him in the
post Lecturer from the date of
joining forthwith.

iii. issue a writ of mandamus
commanding the Opp. Party No.1
to 3 to declare the petitioner
senior to the Opp. Party No.4
with all consequential service
benefits.

iv. issue a writ of mandamus
commanding the Opp. Parties to
count the period of Senior
Research Fellow as teaching
experience in promoting the
petitioner, as Asstt.

Professor.

       v.    any other writ, order or
             direction which this Hon’ble
             Court   deem    fit  in   the
             circumstances of the case may
             also be passed.

       vi. Allow the Writ Petition with
           cost.”


3.5 In the writ petition both the appellant as

well as University has filed their counter

affidavit and contested the claim of the

respondent No.4. Division Bench of the High

Court vide its impugned judgment dated

12.04.2018 allowed the writ petition. The

operative portion of the order of the High
5
Court is as follows:-

                  “The     writ     petition     is
             accordingly allowed. The order
             dated   8.7.2009    passed    by   the
             Chancellor is hereby quashed and
             the    University     concerned     is
             directed to treat opposite party
             no.4     having    been      appointed
             initially on the post of Lecturer
             in      accordance       with      his

qualification. Consequences shall
follow accordingly. However, no
recovery shall be made from
opposite party no.4 from the
payment made to him on account of
said initial appointment on the
post of Assistant Professor.”

3.6 The appellant aggrieved by the judgment of

the High Court has come up in these appeals.

4. We have heard Ms. Meenakshi Arora, learned senior

counsel for the appellant. Shri S.R. Singh, learned

senior counsel appearing for respondent No.4. Shri

Vishnu Shankar Jain, learned counsel has appeared for

respondent No.3.

5. Learned counsel for the appellant contends that

the appellant had started working in the University

as Assistant Professor in BRD Medical College from

19.07.2003 to 07.12.2005. It is submitted that prior

to his deputation in BRD Medical College, Gorakhpur,
6
he was a member of Provincial Medical Services w.e.f.

01.09.1992 and had been working for more than a

decade as Dental Surgeon. It is submitted that

Selection Committee after considering the service

experience and working of the appellant found him

eligible for the post of Assistant Professor, and

recommended as Assistant Professor, who was appointed

as such. It is submitted that the respondent No.4

did not fulfil qualifications of Assistant Professor

since at the time of application, he had only one

year’s experience, hence, he rightly applied for the

post of Lecturer only. It is submitted that the

appointment of the appellant as Assistant Professor

was never challenged by respondent No.4 and it is

with regard to claim of seniority of respondent No.4

over the appellant he submitted his representation

both to the University and the Chancellor.

Representation to the Chancellor was also submitted

after more than three years from the appointment of

the appellant and representations were submitted by

respondent No.4 only when he was promoted as

Assistant Professor in the year 2007. It is

7
submitted that High Court committed error in

entertaining the challenge to the appointment of

appellant as Assistant Professor whereas appointment

was never challenged before the Chancellor or within

a reasonable period by the writ petition, which was

filed in the year 2009. The respondent No.4 cannot be

permitted to challenge the appointment of appellant

after a period of more than four years. It is

submitted that the appellant was senior to the

respondent No.4 right from the very beginning and the

claim of respondent No.4 regarding seniority of the

appellant was misconceived and the dispute was

initiated by respondent No.4 only for purpose of

claiming himself to be senior to the appellant. The

appellant fulfilled the qualifications for

appointment on the post of Assistant Professor and

has been working on his post since the date of

joining.

6. Shri S.R. Singh, learned senior counsel appearing

for the respondent No.4 submitted that the experience

of the appellant as member of Provincial Medical

Services was wholly irrelevant for the purpose of
8
appointment on the post of Assistant Professor. At

best, the appellant’s experience as Assistant

Professor in BRD Medical College, Gorakhpur in

Department of Dentistry from 19.07.2003 to 07.12.2005

can be taken into consideration, which is only two

years four months and 19 days, which was less than

three years, hence, he did not fulfil the eligibility

for the appointment on the post of Assistant

Professor. Shri S.R. Singh submitted that the

appellant, who did not fulfil the eligibility for the

post of Assistant Professor, his appointment on the

post of Assistant Professor was void and is nullity

and the decision of the High Court holding that

respondent No.4 not eligible is correct, which needs

no interference by this Court.

7. We have considered the submissions of the learned

counsel for the parties and have perused the records.

8. For the post of Assistant Professor and Lecturer

advertised by advertisement dated 15.03.2005

qualifications were referred to as qualifications

9
required as in the first Statute of Lucknow

University. Section 42 of the Act, 2002 provided for

first Statutes of the University. The Section

further provided that for so long as the First

Statutes are not so made, the Statutes of the Lucknow

University as in force immediately before the

appointed date in so far as they are not so

inconsistent with the provisions of the Act, 2002,

shall, subject to such adaptations and modifications,

continue in force. The relevant Statute of the

Lucknow University, which provides for qualification

for the post of Assistant Professor is Statute 11.02

B2, which is to the following effect:-

“11.02 B2. Assistant Professor: MDS or
equivalent degree as recognised by the
Dental Council of India in the subject
concerned with at least three years
teaching experience as Lecturer/Chief
Resident/Senior Resident/ Demonstrator /
Tutor or equivalent after obtaining MDS
degree in the subject concerned.

Provided that if suitable candidates
with requisite teaching experience are not
available the selection committee may
recommend candidates for appointment in
lower grade i.e. Lecturers.”

9. There is no dispute to the fact that in pursuance
10
of advertisement dated 15.03.2005 both appellant and

respondent No.4 had applied respectively for the post

of Assistant Professor and Lecturer and Selection

Committee recommended their appointment and Executive

Council in the meeting dated 08.08.2005 approved the

recommendations of Selection Committee appointing

appellant as Assistant Professor and respondent No.4

as Lecturer.

10. The University in its counter affidavit has

relied and referred to Section 53 of the U.P. Act No.

8 of 2002. Section 53 of the Act, 2002 is as

follows:-

“53- If any question arises whether
any person has been duly elected or
appointed as, or is entitled to be a
member of any authority or other body of
the University (including any question as
to the validity of a Statute, Ordinance or
Regulation, not being a Statute or
Ordinance made or approved by the State
Government or by the Chancellor) is in
conformity with this Act or the Statutes
or the Ordinances made thereunder, the
matter shall be referred to the
Chancellor, and the decision of the
Chancellor thereon shall be final:

Provided that no reference under this
section shall be made-

(a) more than three months
after the date when the question
11
could have been raised for the
first time,

(b) by any person other than
an authority or officer of the
University or a person aggrieved:

Provided further that the Chancellor
may in exceptional circumstances-

(a) act suo motu or entertain
a reference after the expiry of
the period mentioned in the
preceding proviso,

(b) where the matter referred
relates to a dispute about the
election, and the eligibility of
the persons so elected is in
doubt, pass such orders of stay as
he thinks just and expedient.”

11. Section 53 provides that if any question arises

whether any person has been duly elected or

appointed, the matter shall be referred to the

Chancellor, and the decision of the Chancellor

thereon shall be final. The Section also contains

proviso to the effect that no reference in this

Section shall be made more than three months after

the date when question could have been raised for the

first time. Although, by the second proviso,

Chancellor can entertain a reference after expiry of

the said period. There is an object and purpose for

12
entertaining any question regarding appointment of

member of any authority or body whether any person

has been duly appointed within a period of three

months. The members of the teaching faculty of the

University be it Lecturer or Assistant Professor are

entrusted with teaching, which is to be imparted

according to academic calendar. It is in the

interest of the University that all doubts regarding

appointment of teachers are raised within a period of

three months to have an early decision by Chancellor

to give quietus to the disputes in the University.

12. From the facts, which have been brought on

record, it is clear that the reference to the

Chancellor was made by respondent No.4 only on

13.02.2009, i.e., subsequent to he was promoted as

Assistant Professor. Chancellor in his order has

noticed the substance of claim of respondent No.4.

Respondent No.4 has claimed to include the experience

of Senior Research Fellow in W.H.O. The respondent

No.4 has complained non-consideration of experience

as Senior Research Fellow with the W.H.O. in his

13
experience for appointment on the post of Assistant

Professor. Chancellor noticed the stand of the

University with regard to claim of respondent No.4 to

include his experience as Senior Research Fellow in

W.H.O. and made following observations:-

“The University has informed that the
experience of Dr. Rao for his service with
the WHO as Senior Research fellow in the
teaching experience was not considered for
the appointment on the post of Assistant
Professor because there is no such scheme
in the bylaws. The applications sent by
Dr. Rao time to time had been disposed
off. The university has also informed
that case of Dr. Amit Nagar and Dr. G.K.
Singh has no similarity with the case of
the complainant and the case of Dr. Nagar
is different.

At the end the statement of the
university is that Dr. Rao has presented
applications without knowing the truth of
the facts mentioned therein and that
through unauthorised manner and since the
above case of Dr. Rao is meritless, having
no force and based on the false facts and
causing disillusion hence it has been
requested to reject the complaint.”

13. The Chancellor has further observed that the

respondent No.4 has mainly requested to establish his

seniority over the appellant. In the last paragraph

of the order, Chancellor has made following

14
observations:-

“The respondent has mainly requested to
establish his seniority against the
respondent Dr. Puran Chand and has mainly
stated that his experience as Senior
Research Fellow with Government of India
and WHO has not been counted as experience
by the Medical University. In the report
sent by the vice chancellor of the
Chhatrapati Shahu Ji Maharaj Medical
University, Lucknow in this regard, it has
been clarified that in section 10.01 (A)
of the First bylaws of the Lucknow
University which has been currently made
applicable to the Medical University also
there is no provision for considering the
services done with WHO as Senior Research
Fellow. The reason given by the
university is as per the law and the
present application lacking force is
rejected.”

14. The copy of the complaint to the Chancellor which

was filed on behalf of respondent No.4 has not been

brought by the respondent No.4 on the record, but

after perusal of the order of the Chancellor, the

main grievance of the respondent No.4 was non-

inclusion of his teaching experience, as Senior

Research Fellow in W.H.O. and his claim of seniority

over the appellant. The respondent No.4 has filed a

counter affidavit in this appeal where in paragraph

No.9, following has been pleaded by respondent No.4:-

15
“9. That in respect of the seniority
between the answering respondent and Dr.
Pooran Chand, a representation was
submitted by the answering respondent
before the University; but the same was
not considered and as such the answering
respondent approached the Hon’ble
Chancellor as per the provisions of
Section 68 of the State Universities Act,
1973.”

15. From the facts as noticed above and the pleadings

of the respondent No.4 in paragraph 9 of his counter

affidavit, it is clear that the respondent No.4 had

submitted his representation to the Chancellor

regarding seniority over the appellant and the

appellant’s appointment as Assistant Professor w.e.f.

08.08.2005 was not challenged. Respondent No.4

wanted that his experience as Senior Research Fellow

in W.H.O. be also included, which was not acceded to.

Section 53 of the Act, 2002 as noticed above when

provides that any dispute regarding appointment in

the University has to be raised within a period of

three months, the respondent No.4 could not have

raised any challenge to the appointment of appellant

after lapse of more than three years. The Chancellor

considered the representation of the respondent No.4

16
and decided it on merits, since the Chancellor was of

the view that the claim is essentially of seniority

by respondent No.4 over the appellant.

16. We, thus, are of the view that the appointment of

appellant as Assistant Professor, which is approved

on 08.08.2005 was not challenged or questioned by

respondent No.4 in accordance with provisions of the

Act, 2002. Although, in the writ petition filed by

respondent No.4, he has made a prayer for quashing

the appointment order dated 08.08.2005 of the

appellant as Assistant Professor but we are of the

view that the appointment of appellant as Assistant

Professor having not been challenged before the

Chancellor, he could not have been permitted to

challenge the appointment of appellant. Appointment

dated 08.08.2005 could not be allowed to be

challenged after four years in the writ petition.

17. Learned counsel for the appellant is right in her

submission that it was after respondent No.4 was

promoted as Assistant Professor, he submitted

representations and claimed before the Chancellor
17
seniority over the appellant. In the counter

affidavit filed by the University, details of the

representations, which were given by respondent No.4

to the Chancellor have also been mentioned in

paragraph 2.9, which are to the following effect:-

       “2.9     That  Dr.   Jitendra   Kumar  Rao
       preferred    a   representation   to   His

Excellency, the Chancellor of K.G.M.U. on
13.02.2009 with the following prayer:-

(a) My seniority in the department
as Assistant Professor may be
looked at.

(b) The seniority of Dr. Pooran
Chand may be reverted back as
per rules.

(c) If some conspiracy to hide the
facts in the appointment of
Dr. Pooran Chand is proved,
then an appropriate action
should be taken against
concern person.”

18. The prayer of the respondent No.4 that appellant

should be reverted on the post of Lecturer could not

have been entertained. There is no question of

reversion of the appellant on the post of Lecturer

when he was appointed as Assistant Professor on

08.08.2005.

18

19. Now, we may notice the judgments, which have been

relied by learned counsel appearing for respondent

No.4 in support of his submissions. Learned counsel

for the respondent No.4 has placed reliance on

judgment of this Court in Nagendra Chandra and Ors.

Vs. State of Jharkhand and Ors., (2008) 1 SCC 798.

The above case related to the appointment on the

vacancy for the post of Constables. The vacancies

were neither advertised through the Employment

Exchange nor in a newspaper, which was a requirement

of Rule 663(d) of Bihar Police Manual but was

displayed only on the notice board. The appellants

of the said case, who were appointed without

advertisement of the vacancy, were dismissed from

service. The writ petition was filed, which too was

dismissed. Challenging the order of the High Court,

the appeal was filed before this Court. Paragraph 3

of the judgment notices the submissions, which is to

the following effect:-

“3. Learned counsel appearing on behalf of
the appellants submitted that though the
vacancies were neither advertised through
the employment exchange nor in any
19
newspaper, as required under Rule 663(d)
of the Bihar Police Manual, but as the
same were displayed on the noticeboard, it
cannot be said that there was infraction
of the said Rule; as such the services of
the appellants should not have been
terminated, more so when they have
continued in service for a period of
fourteen years. On the other hand, learned
counsel appearing on behalf of the State
of Jharkhand submitted that as the
appointments, being in infraction of Rule
663(d), were illegal, the competent
authority was quite justified in
terminating services of the appellants.”

20. In paragraph 9 of the said judgment, this Court

laid down following:-

“9. In view of the foregoing discussion,
we have no option but to hold that if an
appointment is made in infraction of the
recruitment rules, the same would be
violative of Articles 14 and 16 of the
Constitution and being nullity would be
liable to be cancelled. In the present
case, as the vacancies were not advertised
in the newspapers, the appointments made
were not only in infraction of Rule 663(d)
of the Bihar Police Manual but also
violative of Articles 14 and 16 of the
Constitution, which rendered the
appointments of the appellants as illegal;
as such the competent authority was quite
justified in terminating their services
and the High Court, by the impugned order,
was quite justified in upholding the
same.”

20

21. There cannot be any dispute to the preposition

that when the appointment is made in infraction of

the recruitment rules, the same would be liable to be

cancelled. The present is not a case where

appointment of appellant was cancelled by any

competent authority. The appellant was appointed,

recommended by Selection Committee with due approval

of the Executive Council and the appointment was made

after due advertisement. The above judgment, thus,

is distinguishable and does not help the respondent

No.4.

22. Another judgment relied by learned counsel for

the respondent No.4 is Government of Andhra Pradesh

and Ors. Vs. K. Brahmanandam and Ors., (2008) 5 SCC

241, which was a case where management neither

obtained the prior permission of school authorities

nor advertised the vacancy in two newspapers and made

appointment. The appointees, i.e., Secondary Grade

Teachers filed representations for their salary,

which was rejected by the District Education Officer.

A writ petition was filed, which petition was allowed
21
directing for their continuance. In the appeal filed

by the State, the judgment of the High Court was set

aside. This Court held that the appointments made in

violation of the mandatory provisions of a Statute

would be illegal and, thus, void. There can be no

dispute to the above preposition but the above was a

case where the appointment of the teachers were

neither approved nor was made in accordance with the

statutory rules, hence, this Court took the view that

they are not entitled for any salary from the State

and it was school authorities to pay their salary.

23. Another judgment relied by the learned counsel

for the respondent No.4 is Pramod Kumar Vs. U.P.

Secondary Education Services Commission and Ors.,

(2008) 7 SCC 153, which was also a case of a teacher,

who had obtained B.Ed. degree from an institution,

which was not recognised. He was appointed by the

Management Committee and filed a writ petition for

his salary, his services were terminated. He filed a

writ petition, which was dismissed, against which

appeal was also dismissed. This Court in paragraph

22
21 made following observations:-

“21. It is not in dispute that the said
institution was not recognised by any
university. A degree is recognised only if
it is granted by a university constituted
in terms of the University Grants
Commission Act
, 1956 or under any State or
parliamentary Act. No university can be
established by a private management
without any statutory backing.”

24. This Court dismissed the appeal filed by the

teachers. The above case was also on different

premise and does not help the respondent No.4.

25. Appellant has also placed reliance on judgment

of this Court in State of Jammu and Kashmir Vs. R.K.

Zalpuri and Ors., (2015) 15 SCC 602 where writ petion

was filed challenging the dismissal order after six

year. The writ petitoin was allowed by the learned

Single Judge against which LPA by the State was also

dismissed. This Court allowed the appeal and held

that delay in approaching High Court under Article

226 was fatal in the above case. In paragraphs 26

and 27 following was laid down:-

“26. In the case at hand, the employee was
dismissed from service in the year 1999,
but he chose not to avail any departmental

23
remedy. He woke up from his slumber to
knock at the doors of the High Court after
a lapse of five years. The staleness of
the claim remained stale and it could not
have been allowed to rise like a phoenix
by the writ court.

27. The grievance agitated by the
respondent did not deserve to be addressed
on merits, for doctrine of delay and
laches had already visited his claim like
the chill of death which does not spare
anyone even the one who fosters the idea
and nurtures the attitude that he can
sleep to avoid death and eventually
proclaim “deo gratias”—“thanks to God”.”

26. As observed above, the Act which Governs the

appointment of Assistant Professors and Lecturers in

the University itself provides a mechanism for

questioning an appointment, i.e., by representation

to the Chancellor that too within a period of three

months. Any challenge to appointment after more than

three years cannot be entertained as we have already

held that respondent No.4 in his representation

before the Chancellor never challenged the

appointment of appellant as Assistant Professor and

had filed representation only claiming seniority over

24
appellant after he got promoted as Assistant

Professor himself in the year 2007, High Court ought

not to have entertained the challenge to the

appointment of appellant in the writ petition and

ought to have confined the consideration of claim of

respondent No.4 for seniority over the appellant.

When the appointment of appellant was not challenged

in reasonable time as per the provisions of the Act,

2002, it is not in the ends of justice to permit the

respondent No.4 to challenge such appointment in the

High Court in the writ petition for the first time,

after more than four years of the appointment.

27. We, thus, are of the considered opinion that High

Court committed an error in quashing the appointment

of respondent No.4 as Assistant Professor, quashing

the order of the Chancellor as well as direction to

treat the appellant as being appointed as a Lecturer.

There was no error in the order of the Chancellor

rejecting the representation made by the respondent

No.4, which representation was referable to Section

53 of Act No. 8 of 2002. High Court committed error

25
in quashing the order as well as issuing directions

as noted above.

28. In view of the foregoing discussions, we allow

the appeals and set aside the judgment of the High

Court dated 12.04.2018 and dismiss the writ petition

filed by respondent No.4.

………………….J.

( ASHOK BHUSHAN )

………………….J.

( R. SUBHASH REDDY )

………………….J.

( M.R. SHAH )
New Delhi,
January 29, 2021.

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