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1999 Supreme(All) 1099
IN THE HIGH COURT OF ALLAHABAD
D. K. Seth, J.
MRS.BHARTI KRISHNA - Appellant
Versus
VICE-CHANCELLOR, BANARAS HINDU UNIVERSITY - Respondents
Civil Misc. Writ Petition 24119 Of 1996
Decided On : 08/03/1999
K.M.L.Hajela, PANKAJ NAQVI, V.K.UPADHYAY
Headnote:
ORDINANCE - Amendment - Effectiveness - Banaras Hindu University Act, 1915 - Section 18(6) and (7) - Interpretation - Ordinance made by Executive Council - Effectiveness - Approval of Visitor - Implied approval - Non-placement of ordinance before Visitor - Effect - Regularity of official acts - Presumption - Evidence Act, 1872 - Section 114 - Judicial notice of law - Section 57(1) - Banaras Hindu University Act, 1915 - Section 16C - Irregularity in procedure - Effect on validity of act or proceeding.
Fact of the Case:
The petitioner challenged the appointment of the respondent No. 5 as an Assistant Lecturer in English at the Central Hindu Girls School, Banaras Hindu University, on the grounds that the constitution of the Selection Committee was invalid and that the Executive Council had no authority to make the appointment.
Finding of the Court:
1. The constitution of the Selection Committee was not invalid as the inclusion of the officiating principal, instead of the principal, was not a disqualification or incompetence. 2. The Executive Council had the authority to make the appointment as the ordinance amending the provision for appointment of teachers had been effectively amended and the power to appoint had been vested in the Executive Council. 3. The non-placement of the ordinance before the Visitor did not render it ineffective as there was no requirement for implied approval by the Visitor. 4. The Court could take judicial notice of the ordinance made by the Executive Council as it was a law in force in the Banaras Hindu University. 5. Any irregularity in the procedure of the Executive Council did not affect the validity of the appointment as per Section 16C of the Banaras Hindu University Act, 1915.
Issues: 1. Whether the constitution of the Selection Committee was invalid due to the inclusion of the officiating principal instead of the principal? 2. Whether the Executive Council had the authority to make the appointment of the respondent No. 5? 3. Whether the non-placement of the ordinance before the Visitor rendered it ineffective? 4. Whether the Court could take judicial notice of the ordinance made by the Executive Council? 5. Whether any irregularity in the procedure of the Executive Council affected the validity of the appointment?
Ratio Decidendi: 1. The expression "principal" in the ordinance governing the constitution of the Selection Committee did not exclude the officiating principal, who was lawfully performing the duties of the principal in the absence of the principal. 2. The Executive Council was empowered to frame ordinances and amend the same, and the amendment vesting the power to appoint teachers in the Executive Council was valid and effective. 3. Sub-section (6) of Section 18 of the Banaras Hindu University Act, 1915, did not provide for implied approval by the Visitor for an ordinance to become effective. 4. The Court could take judicial notice of the ordinance made by the Executive Council under Section 57(1) of the Evidence Act, 1872, as it was a law in force in the Banaras Hindu University. 5. Section 16C of the Banaras Hindu University Act, 1915, provided that no act or proceeding of any authority of the University shall be invalid by reason of any irregularity in its procedure not affecting the merits of the case.
Final Decision: The writ petition was dismissed as the petitioner failed to establish any irregularity or illegality in the constitution of the Selection Committee, the authority of the Executive Council to make the appointment, or the effectiveness of the ordinance amending the provision for appointment of teachers.
( 1 ) AN advertisement was issued on 13th October, 1995 by Banaras Hindu University for filling up of vacancies in different Posts in the Central Hindu Girls School including the post of assistant Lecturer in English. Many others as well as the petitioner and respondent No. 5 had applied for the post pursuant to the said advertisement. At the material point of time, in the absence of the principal, the respondent No. 4 was acting as principal of the Central Hindu Girls school as officiating principal. She was inducted in the Selection committee as one of the members in place of the principal. The selection committee had recommended the name of the respondent No. 5 for appointment in the post for which the petitioner had contested. By a resolution dated 20/21st July 1996, the Executive council had appointed the respondent No. 5 in the said post. This appointment has since been challenged by the petitioner in this writ petition.
( 2 ) MR. K. M. L. Hajela, learned counsel for the petitioner contends that the constitution of the selection Committee was invalid in view of Ordinance 5 Clause- (VI) (C) Chapter-VI of the banaras Hindu University Calendar providing for the Ordinance governing the Management of institution under the School Board earned under Statute 41 (2) of the Banaras Hindu University statute. In as the said clause provides for constitution of the Selection Committee for selection of principal and teachers. The Selection Committee for teachers consists of (1) Vice-Chairman, (2)Dean, Faculty of education, (3) Two members nominated by the chairman of the School Board, (4) Registrar, B. H. U. (5) Principal, Kendriya Vidyalaya, B. H. U. Campus and (6) principal of the concerned Institution. According to him, the word principal does not include officiating principal. The expression principal is meant for a principal who has been appointed substantively. Thus, according to him the inclusion of the officiating principal has vitiated the constitution of the selection committee. The officiating principal is incompetent on account of her not being appointed in substantive capacity, constitution of the Selection committee itself was vitiated and therefore, the Selection Committee could not have recommended the name of the respondent No. 5 such recommendation was, therefore, without jurisdiction. Thus, the selection was void and without authority. In support of his contention, he relies upon the decision in the case of S. K. Lamba v. State of U. P. , (1993) 3 UPLBEC 1624), by a Division bench. He then contends that in view of Sub-section 6 of Section 18 of the Banaras Hindu university Act, 1915 every Ordinance is to be placed before the Visitor who may disallow of remit the same to the Executive council. According to him, in the present case, there was nothing to show that the Ordinance by which the Executive Council had appointed the respondent No. 5 purported to have been amended by a resolution dated 20/21st July, 1996 had ever been placed before the visitor. Therefore, according to him, the reliance placed by Mr. V. K. Upadhyay on the said ordinance, to defend the claim of the petitioner, is wholly misplaced, since in the absence of placement of the ordinance before the visitor, the same had never come into existence and could not have been enforceable. He contends that the purported amendment of the Clause (VI) (c) of Ordinance 5 on the basis whereof the appointment of the respondent No. 5 was issued, had never come into life and as such the Executive Council could not assume jurisdiction to appoint respondent No. 5 is wholly without jurisdiction and void. According to him, unless there is an approval by the visitor which is implied in Sub-section (6) of Section 18, an Ordinance does not become effective and enforceable. In support of his contention, he had relied upon the decision in the case of Inamdars of Sulhnagar Colony and Ors. v. Government of Andhra pradesh and Anr. , AIR 1961 Andhra Pradesh 523, (V.
