Yogendra Singh Rawat vs Hemwati Nandan Bahuguna Garhwal University

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1998 Supreme(SC) 171

1998(2) Supreme 13
Supreme Court of India
(From Allahabad High Court)
S. Saghir Ahmad and D.P. Wadhwa, JJ.
Yogendra Singh Rawat & Ors. -Appellants
versus
Hemwati Nandan Bahuguna Garhwal University & Ors. -Respondents
Civil Appeal Nos. 365-70 of 1994
(With CA 627 of 1998 (@) SLP (C) No. 266/94)
Decided on 5-2-1998
Counsel for the Parties :
For the Appearing Parties : Harish Salve, R.B. Mehrotra, Sr. Advocates, R.K. Gupta, Uma Datta, D.K. Garg, M.K. Garg, (R.C. Verma and Chaitanya Siddarth) Advocates for R.B. Misra, Advocate/Advocates.

Headnote:U.P. State Universities Act, 1973 -U.P. State Universities (Amendment) Act, 1992-Sections 31, 49-Qualifications for a lecturer for the amending Act to be applicable-Effect of amending Act when initial appointments made u/s 13(6) of the Principal Act-Writ Petitions filed by appellants praying that they be granted substantive appointment as lecturers in terms of the Amendment Act-Held, Statute 11.01 as amended by 26th amendment would apply in the cases of the appellants-Artificial break in service cannot be taken into account while considering the question that any of the appellants was not working continuously as on 22.11.1991 from the date of his initial appointment on or before 30.6.1991 -High Court was right in holding that appellants did not satisfy requisite qualifications or criteria laid down for their appointment as lecturer.
       Held, the effect of the amending Act amending the Principal Act and by insertion of clause (c) to sub-section (3) of Section 31 would be that any lecturer who was appointed without reference to the Selection Committee under sub-section (6) of Section 13 would be given substantive appointment on the conditions that (1) a substantive vacancy was available on November 22, 1991; (2) his appointment was on or before June 30, 1991 and was serving as such on November 22, 1991 continuously since his initial appointment; (3) he continued to possess qualifications as prescribed under relevant provisions of the statutes at the time of initial appointment on November 22, 1991; and that (4) he has been found suitable for regular appointment by the Executive Council of the University. (Para 8)
       It has been rightly held by the High Court that artificial break in service cannot be taken into account while considering the question that any of the appellants was not working continuously as on November 22, 1991 from the date of his initial appointment on or before June 30, 1991. High Court has also held that opportunity was given to the appellants when the Executive Committee considered their cases. Taking into account the relevant statutes of the University, the High Court was of the view that if any one of the appellants had already been awarded Ph.D. or M.Phil. degree or will be awarded M.Phil. degree upto December 1990 or Ph.D. degree upto December 1992 he would be qualified for the post of lecturer. Thereafter the High Court addressed itself to the question if the appellants who had been given short term ad hoc appointments were entitled to substantive appointments. It noted that procedure for making appointments was that the vacancy had to be advertised in accordance with sub-section (1) of Section 31 of the Act and in absence of the advertisement there would be violation of Article 16 of the Constitution and any such appointments would be rendered illegal. The Executive Committee could make appointment only on the basis of the recommendations made by the Selection Committee. (Para 13)
       The High Court then examined the individual cases of the appellants and found that they did not possess the requisite qualifications and further that their cases had been considered by the Executive Committee who did not find them suitable to be given regular appointments. The High Court, therefore, by judgment dated August 20, 1993 dismissed the writ petitions holding that these lacked merit and vacated the interim orders passed in favour of the appellants. When the matter came to this Court in special leave petitions while granting leave stay was declined. (Para 14)

Judgment

D.P. Wadhwa, J.-Special leave granted.

2. The appellants filed writ petitions in the High Court of Judicature at Allahabad praying that they be granted substantive appointments as lecturers in the Hemwati Nandan Bahuguna Garhwal University (for short ‘the University’) in terms of the Uttar Pradesh State Universities (Second Amendment) Ordinance (No. 44 of 1991) which was later passed as Act No. 1 of 1992 by the U.P. Legislature called the U.P. State Universities (Amendment) Act, 1992 (for short, the ‘amending Act’). The amending Act amended the U.P. State Universities Act, 1973 (for short, the ‘Principal Act’). A Division Bench of the High Court, however, did not find any merit in the writ petitions and dismissed the same by judgment dated August 20, 1993. Aggrieved, the appellants have come to this Court.

3. Originally there were eight appellants. Appellants Y.S. Rawat, G.P. Sharma and J.P. Madhwal are stated to be no longer interested in pursing their appeals. The appellants before us are now Dr.L.P. Lakhera, Shri R.S. Negi, Dr. M.S. Sati, Shri Ajay Pal Singh and Dr. Surendra Joshi.

4. Sub-section (6) of Section 13 of the Universities Act provides that where any matter is of urgent nature requiring immediate action and the same cannot be immediately dealt with by any officer or authority or any other body of the University empowered by or under the Universities Act then to deal with that situation the Vice-Chancellor may take action as he may deem fit. He shall thereafter forthwith report the action taken by him to the Chancellor and also to the officer, authority or other body who or which in the ordinary course would have dealt with the matter. Under sub-section (8) of Section 13 where exercise of power by the Vice Chancellor under sub-section (6) involved the appointment of an officer or a teacher of the University, such appointment shall terminate on the appointment being made in the prescribed manner or on the expiration of a period of six months from the date of the order of the Vice-Chancellor, whichever is earlier. That would mean that the appointment of a lecturer made by the Vice-Chancellor could not last for more than six months. Section 31 of the Universities Act provides for the appointment of teachers of the University. Sub-section (1) thereof provides that the teachers of the University shall be appointed by the Executive Council on the recommendations of a Selection Committee in the manner laid down in that Section. Sub-section (10) of Section 31 provides that no selection for any appointment shall be made except after advertisement of the vacancy in at least three issues of two newspapers having adequate circulation in the State of Uttar Pradesh. Section 49 deals with Statutes and clause (d) lays down that the Statutes may provide for the classification and recruitment (including minimum qualifications and experience) of the teachers of the University. As to what are the qualifications prescribed for a lecturer by relevant Statutes of the University, it will be appropriate to refer to the Ordinance which was subsequently replaced by Act No. 1 of 1992. Sub-section (2) of Section 1 of this amending Act provided that this Act shall be deemed to have come into force on November 22, 1991. Sections 2 and 3 of this Act amending the Principal Act, that is the Universities Act, are as follows:

“2. In Section 13 of the Uttar Pradesh State Universities Act, 1973, as amended and re-enacted by the Uttar Pradesh Universities (Re-enactment and Amendment) Act, 1974 hereinafter referred to as the Principal Act :-

(a) in sub-section (6), after the words “where any matter” in words “other than the appointment of teacher of the University” shall be inserted.

(b) in sub-section, the words “or a teacher of the University” shall be omitted.

3. In Section 31 of the Principal Act:-

(a) in sub-section (1) words “The selection committee shall meet as often as necessary”

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