G.P. Singh, J.

This is a petition under Articles 226 and 227 of the Constitution praying that the resolution passed by the Executive Council of the University of Saugar dated 19th December 1971 (Annexure B) be quashed.

The relevant facts which are not in dispute are that the petitioner was appointed as Assistant Lecturer in Zoology in the Saugar University on 5th January 1949 and he has been serving that University since then. He was conferred the degree of Ph. D. in 1957 by the Saugar University and he was also conferred another Ph. D. degree in 1962 by the Cambridge University. The petitioner was made a Reader in the Saugar University in the year 1968. In 1971 for one year he went as Reader to Jiwaji University during which period he was on leave in the Saugar University.

A permanent post of Professor in Zoology is vacant in the Saugar University. On 31st May 1971 by an advertisement (Annexure A) applications were invited for various posts including the post of Professor in Zoology. The petitioner applied for the said post. One Dr. Bhargava who is also a Reader in Zoology in the Saugar University also applied for that post. There were other applicants also. The selection to the post of Professor is made by a Selection Committee constituted under section 47-A of the University of Saugar Act, 1946. A meeting of the Selection Committee was held on 4th December 1971. That meeting was attended by six members. Five candidates were interviewed by the committee. By a majority of five to one the committee recommended that the petitioner be appointed as Professor in the department of Zoology in the University. One member alone dissented from this recommendation as he felt that Dr. Bhargava should be appointed. The recommendation of the committee is contained in Annexure B. This recommendation was considered by the Executive Council of the University in its meeting on 19th December 1971 and it was resolved that "the recommendation of the Selection Committee be not accepted as its acceptance would lead to administrative and disciplinary complications". This is the resolution which is challenged by the petitioner in this petition.

Before adverting to the contentions raised in this petition, it is necessary to refer to the relevant statutory provisions of the University of Saugar Act, 1946. The Executive Council is the executive body of the University and is constituted under section 23 of the Act. The powers and duties of the Executive Council are set out in section 24. The relevant powers and duties are contained in clauses (k), (l), (m) and (p) of sub-section (1) of section 24. These clauses read as follows:

24 (1) The Executive Council-

(k) may institute, at its discretion such Professorships, Readerships or Lecturer-ships, or other teaching posts as may be proposed by the Academic, Council;

(l) may abolish or suspend, after report from the Academic Council thereon, any Professorship, Readership, Lectureship or other teaching posts in the University;

(m) shall, save as otherwise provided for by this Act or the Statutes, appoint the officers (other than the Chancellor, the Pro-Chancellor, the Vice-Chancellor and the Rector) teachers and other servants of the University, and shall define their duties and the conditions of their service, and shall provide for the filling of temporary vacancies in their posts;

(p) shall, subject to the powers conferred by this Act on other authorities of the University, regulate, determine and administer all matters concerning the University, and to this end, shall exercise all other powers of the University not otherwise provided for by this Act or the Statutes.

These provisions go to show that the Executive Council may, at its discretion, institute Professorships, Readerships or Lectureships or other teaching post as may be proposed by the Academic Council and may abolish or suspend any of these posts after report from the Academic Council. Subject to the other provisions of the Act and Statutes, the Executi