The University of Cochin Vs. Dr. N.
Raman Nair & Ors [1974] INSC 217 (30 October 1974)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
KRISHNAIYER, V.R.
UNTWALIA, N.L.
CITATION: 1974 AIR 2319 1975 SCR (2) 526 1975
SCC (3) 628
ACT:
Cochin University Act (30 of 1971) s. Scope of
HEADNOTE:
Section 6 of the Cochin University Act, 1971,
read as a whole, indicates that it was meant to eliminate unjustifiable
discrimination. Section 6(2) lays down the mandatory duty upon the University
to observe cls. (a), (b) and (c) of Rule 14 of ' ha Kerala State Subordinate
Service Rules muiatis mutandis. Rule 14 lays down rule of rotation in making
appointments. Clause (C) of the Rule lays down a scheme of rotation for every
block of 20 vacancies, the first vacancy to be filled by open competition. The
Syndicate of the University passed a resolution in 1972 providing that the
rules mentioned in s. 6(2) be implemented in the case of teaching staff as a
class, except in the case of post of Professor which shall be filled up
exclusively in consideration of merit and that the reservation quota against
this category should be provided additionally in the category of Readers,
Lecturers etc. taken collectively.
The first respondent applied for the post of
Reader in the department of Hindi, and though he ranked first. the post was
given to another who was a member of the backward class.
'The respondent filed a writ petition sad
High Court allowed it.
Dismissing the appeal to this Court,
HELD : (1) Section 6(2) does not indicate the
manner in which the clarification of members of service under the University
has to be made for the purpose of applying the rules mentioned therein, but,
inasmuch as every statutory power has to be exercised reasonably, the
classification has to be reasonable.
[533C] (2) Though rule 14(c) does not
specifically say that the rule of rotation will be applied in the order in
which vacancies occur, by necessary implication, the rule is intended to be so
applied. That being the object of the rule the rule must have been intended to
operate with reference to the dates on which the vacancies occur and not with
reference to some other events. Though the rules were made by the Government in
1967, for the purpose of applying the rules to the University the rotation
could only be applied to vacancies existing on the date when the Act came into
force and in the order in which the vacancies had occurred. [533E-IH] (3) The
Syndicate of the University appointed a Standing Committee to draw up the list
of vacancies at the time when the Act came into force and the list indicates
that the vacancy of a Reader in the department of Hindi was the first to occur.
[534A-B; 535A-B] (4) The High Court was right in holding that the power to
apply the rules mutatis matandis does not include the power of amending the
substantial provisions in the rules. The power of the University is confined to
making only what are necessary adaptations so as to make the rules, applicable
to those in the service of the University in place of the government servants for
whom they were promulgated. It could include a power to ignore only such parts
as may be inapplicable or in conflict with the Act itself. The Syndicate could
not, in any case, alter the provisions of s.
6(2) of the Act itself which made it
incumbent on the University to apply the rotation rule as contemplated under
the rules to every service, class or category under the University. If the post
of Reader in the department of Hindi was the first to arise in service under
the University an application of the rotation principle would compel the first
appointment to take place on the basis of an open competition. That principle
could certainly not be modified by the University by taking shelter behind the
words mutatis mutandis. [535D-H] 527 (5) The resolution of 1972 is on the face
of it partly Invalid by attempting to place appointment to the post of a
Professor outside the reservation and rotation rules altogether, and it is
ambiguous irk its exact meaning. The second part seems resigned to provide for
other backward classes a compensatory quota of reserved appointments in a
category other than of Professors in-lieu of the removal of post of Professors
from subjection to the rules, The second part is apparently a consequence of
the exclusion of the professors from the operation of the rules, which is
itself not permissible, and not an adaptation for the purpose of applying the
rules to the University. The two parts are inseparable and therefore the whole
resolution is invalid. [536F-537C] (6) The appointee as well as the respondent
are now both holding posts of readers in the Hindi Department as the needs of
the University have expanded; but it is necessary to determine the order of
their appointments after the University has laid down its own method of reasonable
classification either of the whole teaching staff of the University
collectively or by putting various categories of the teaching stat into
separate compartments for the applications of the rules. The University may
treat all the teaching posts as belonging to one class for the application of
the rules. On the other hand, it may treat only post of readers in all subjects
or in a particular subject as a category by itself for the application of the
rules. But it cannot exempt any class or category such as professor from the
operation of the rules altogether. It is desirable that the University should
be left to make its own reasonable classification in accordance with these
Principles and to determine which of the two readers was entitled to be
appointed earlier. [537C-F]
CIVIL APPELLATE, JURISDICTION: Civil Appeal
No. 885 of 1974.
Appeal by Special Leave from the Judgment
& Order dated the 29th November, 1973 of the Kerala High Court in 0. P. No.
102 of 1973.
A. K. Sen.. M. R handran and A. S. Nwnbiar, for
the Appellant.
T. S. Krishnamurthi Iyer and N. Sudkakaran,
for Respondent No. 1.
The Judgment of the Court was delivered by
BEG, J. The University of Cochin was granted special leave to appeal to this
Court against the judgment and order of the Kerala High Court allowing a writ
Petition of the respondent Dr. N. Raman Nair who bad applied unsuccessfully on
15-10-1972 for the Post of Reader in the Department of Hindi after coming into
force of the Cochin University Act 30 of 1971 (hereinafter referred to as 'the
Act'). no High Court had quashed a resolution; passed by the Syndicate on
6-1-1973, for appointing Dr. A. Ramchandra Dey to the Post.
The High Court had also quashed the
resolution of the Syndicate of the University passed on 17-7-1972, the relevant
part of which runs as follows :
"Resolved that
1. the rules mentioned under section 6(2) of
the Cochin University Act, 1971, be implemented in the case of teaching staff,
as a class except in the case of post of Professor which shall be filled up
exclusively in consideration of merit: but the reservation quota against this
category should be provided additionally in the category of readers, Lecturers,
Teaching Assistant, etc. taken collectively".
L319Sup. CI/75 528 It had directed the
University to make appointments in conformity with Section 6(2) of the Act.
Section 6 lays down:
6. "University open to All Classes and
Creeds:(1) No person shall, on grounds only of religion, race, caste, sex,
descent, place of birth, residence, language, political opinion or any of them,
be ineligible for, or discriminated against in respect of any employment or
office under the University or membership of any of the authorities or bodies
of the University or admission to any degree or course of study in the
University.
(2) In making appointments to posts in any
service, class or category under the University, the University shall mutatis
mutandis, observe the provisions of clauses (a), (b) (c) of rule 14 and the
provisions of rules 15, 16 and 17 of the Kerala State and Subordinate Service
Rules as demanded from time to time".
Section 6 of the Act, read as a whole,
indicates that it was meant to eliminate unjustifiable discrimination. The
provisions of Section 6 (1) are directed against discrimination against
particular individuals on any of the grounds given there. Section 6(2) is meant
to ensure equality of treatment between citizens as members of groups, and, in
particular, to enable "backward" classes to secure appointments so as
to remove the gap between the "advanced" and the
"backward". In doing so, it may appear that the principle of equality
of opportunity on the basis of individual merit is being modified. Even if that
be the result, the wider object is to promote equality between groups of ,citizens.
Rule 14, mentioned in Section 6(2) lays down
a rule of rotation in making appointments. Rule indicates that the principle of
minimum qualifications to determine whether candidates are suitable for
selection is not abandoned.
Rule 16 provides for a
"sub-rotation" among sub-groups of major backward classes. This
concept is further explained and elaborated in Rule 17. These rules are set out
below in to.
" 14. Reservation of appointments.-Where
the Special Rules lay down that the principle of reservation of appointments
shall apply to any service, class or cat,--gory, or where in the case of any
service, class or category for which no special Rules have been issued, the
Government have by notification in the Gazette declared that the principle of
reservation of appointments shall apply to such service, class or category,
appointments by direct recruitment to such service class or category shall be
made on the following vice basis (a) The unit of appointment for the purpose of
this rule shall be 20, of which two shall be reserved for scheduled castes and
scheduled tribes and 8 shall be reserved for the 529 other Backward classes and
the remaining 10 shall be filled on the basis of merit.
Provided that one out of every five posts
reserved for Scheduled Castes and Scheduled Tribes shall go to a scheduled
Tribe candidate only in the absence of a Scheduled Tribe Candidate, it shall go
to a Scheduled Caste candidate.
(b) The claims of members of Scheduled Castes
and Scheduled Tribes and Other Backward Classes shall also be considered for
the appointments which shall be filled on the basis of merit and where a
candidate belonging to a Scheduled Caste, Scheduled Tribe or Other Backward
Class is selected on the basis of merit, the number of posts reserved for
scheduled castes, scheduled tribes or for Other Backward Classes as they case
may be, shall not in any way be affected.
(c) Appointments under this rule shall be
made in the order of rotation specified below in every of 20 vacancies.
1 . Open Competition.
2. Other Backward Classes.
3. Open Competition.
4. Scheduled Castes and Scheduled Tribes.
5. Open Competition.
6. Other Backward Classes.
7. Open Competition.
8. Other Backward Classes.
9. Open Competition.
10. Other Backward Classes 11. Open
Competition.
12. Scheduled Castes and Scheduled Tribes.
13. Open Competition.
14. Other Backward Classes.
15. Open Competition.
16. Other Backward Classes.
17. Open Competition.
18. Other Backward Classes.
19. Open Competition.
20. Other Backward Classes.
Provided that the fourth turn in the third
rotation and the twelfth turn in the fifth rotation shall go to Scheduled Tribe
candidates and in the absence of scheduled tribe candidates, they shall go to
Scheduled Castes candidates.
530 Provided that the rule shall not apply in
appointments of near relatives of military personnel killed, permanently
disabled or reported to be missing in action if they are or have been wholly
dependent on such personnel and they shall be given preference, in the matter
of appointment to Government Service provided, they possess the prescribed
qualifications and subject to the condition that preference in the matter of
appointment shall be given only to one relation in the case of each such
personnel.
Explanation :-The term "Near
Relatives" means the widows/wives, sons, daughters, sisters, brothers,
fathers, mother; nieces and nephews of the military personnel.
15. If there is no suitable candidate for
selection from a particular community classified as "Other Backward
Classes" or from the group of communities classified as "Scheduled
Castes and Scheduled Tribes" in the turn allotted for them in the
integrated cycle combining the rotation in clause (c) of rule 14 and the
sub-rotation in sub-rule (2) of rule 17, the said community or group shall be
passed over and the post shall be filled up in the following manner: If a
suitable candidate is available for selection in the, community or group
immediately next to the passed over community or group in said cycle, he shall
be selected.
If no such candidate is available in that
community or group selection shall be made from the community or group in the
said cycle, he shall be selected. If no such candidate is available in that
community or group, selection shall be made from the community or group next
following, strictly in the order of rotation. If no suitable candidate is
available for selection in any of the said communities or groups, selection
shall be made from among the open competition candidates.
The benefit of the turn thus forfeited to a
community, or group by reason of it being passed over shall be resorted to it,
at the earliest possible opportunity, if a suitable candidate from that
community or group is available for selection by making adjustment against the
claims of the community or group that derived the extra benefit by reason of
such passing over;
Provided that in no year reservations
including carrying forward vacancies to a category of post shall exceed 50% of
the total number of vacancies for which selection by direct recruitment to that
category is resorted to in that year :
Provided further that the right of
restoration of the turn shall lapse with the expiry of three years from the
date of the passing over;
Provided also that the said right of.
restoration shall not extend to a case where
the selection has gone, to an open Competition candidate.
531 Note: The year of reservation referred to
above shall be from the 15th June of a calendar year to 14th June of the
succeeding calendar year. The rotation referred to above shall commence from
15,-6-1967 and the outstanding compensation due to communities in the cycle of
rotation upto 15-6-1967 will be treated as lapsed.
16. There shall be subrotation among major
groups of Other Backward Classes.
17(1). The grouping of Other Backward Classes
for the above purpose shall be as indicated below 1. Ezhavas and Thiyyas.
2. Muslims.
3. Latin Catholics S.I.U.C. and AngloIndians.
4. Scheduled Caste converts to Christianity,
5. Other Backward Classes put together i.e.
Communities other than those mentioned in items
1 to 4 above included in the list of "Other Backward Classes".
(2) The 40% reservation allowed to Other
Backward Classes shall be distributed among the different groups of Backward
Classes in the following proportion:Out of every 40 appointments 14 shall be
given to Ezhavas and Thiyyas, 10 to Muslims, 5 to latin Catholics, S.I.U.C. and
Anglo-Indians, I to Scheduled Caste converts to Christianity and 10 to Other
Backward Classes put together.
Note :-The year of reservation referred to
above shall The following shall be the rotation by which posts reserved for
Other Backward Classes will be distributed among the various groups coming
under the class:
1. Ezhavas and Thiyyas, 2. Muslims.
3. Latin Catholics, S.I.U.C. and AngloIndians.
4. Other Backward Classes.
5. Ezhavas and Thiyyas.
6. Muslims.
7. Ezhavas and Thiyyas.
8. Other Backward Classes.
9. Latin Catholics, S.I.U.C. and AngloIndians.
10. Muslims.
11. Ezhavas and Thiyyas.
12. Other Backward Classes.
13. Ezhavas and Thiyyas.
14. Muslims.
15. Latin Catholics, S.I.U.C. and AngloIndians.
532 16. Other Backward Classes.
17. Ezhavas and Thiyyas.
18. Muslims.
19. Scheduled Caste converts to Christianity.
20. Other Backward Classes.
21. Ezhavas and Thiyyas.
22. Muslims.
23. Ezhavas and Thiyyas.
24. Other Backward Classes.
25. Ezhavas and Thiyyas.
26. Muslims.
27. Latin Catholics, S.I.U.C. and AngloIndians.
28. Other Backward Classes.
29. Ezhavas and Thiyyas.
30. Muslims.
31. Ezhavas and Thiyyas.
32. Other Backward Classes.
33. Ezhavas and Thiyyas.
34. Muslims.
35. Ezhavas and Thiyyas.
36. Other Backward Classes.
37. Latin Catholics, S.I.U.C. and AngloIndians.
38. Muslims.
39. Ezhavas and Thiyyas.
40. Other Backward Classes.
Explanation .-.-The expression "Other
Backward Classes" referred to in items 4, 8, 12, 16, 20, 24, 28, 32, 36
and 40 shall mean Backward Classes referred to in item 5 under sub-rule (1) of
this rule".
It is not disputed that the
petitioner-respondent No. 1 Dr.
Nair, stood 1st in the order of merit as
determined by the Board, of Appointments for the posts of a Reader in the
Department of Hindi in the University. The petitioner respondent's case was
that the post of Reader in Hindi is in itself a particular category. He also
said :
"If the principle for reservation of
appointments provided in Rules 14 to 17 of the General Rules is applied to the
post of Reader in Hindi, the petitioner alone is entitled to get it since he
secured the 1st rank in the selection and since the first post is reserved for
open competition (on merits as provided in Sub Rule (c) of Rule 14)".
533 The petitioner submitted that the
principle of reservation had been wrongly interpreted by the University in its
resolution of 17-7-1972 (Ex. P. 2) when it laid down that principles of
reservation for appointment should be Applied to posts in a service, or class
or category collectively and not separately. The whole case, therefore, hinged
round an interpretation of Rules 14 to 17 and their impact on the principle of
rotation as applied to "service, class or category under the
University".
Section 6(2) laws down the mandatory duty
upon the University to observe clauses (a), (b) and (c) of Rule 14, as well as
Rules 15, 16 and 17 of the rales set out above.
But, it does not indicate the, manner in
which the classification of members of a service under the University has to be
made for the purposes of applying these rules..
Inasmuch as every statutory power has to be
exercised reasonably, we can say that the classification has to be reasonable.
Thus the University may treat all the teaching posts as belonging to one class
for the application of the rules. On the other hand, it may treat only posts,
of Readers in all subjects or in a particular subject as a category by itself
for the application of these rules. It cannot exempt any class or category,
such as Professors, from the operation of the rules altogether. Only if it so
classifies all posts in a service under the University as to make its
classification prima facie unreasonable, could the validity of the
classification made by it be assailed. The power is presumed to be exercised
reasonably on the strength of facts and circumstances relevant for purposes
intended to be achieved by the classification. These purposes have also to pass
the test of legality and constitutionality.
Clause (c) of Rule 14 lays down a scheme of
rotation for every block of 20 vacancies. But, it does not specifically say
that the rule of rotation will be applied in the order in which vacancies
occur. We however, think that, by necessary implication, the rule is intended
to be applied to vacancies in the order in which they occur. It could not be
meant to be applied with reference to the date on which a vacancy is announced
or advertised because these are fortuitous matters over which those in power in
the University may, if so inclined, be able to exercise control.
The whole object of such rules is to
introduce fixity of principle and of the method of its application so as to
remove, so far as possible, uncertainty and opportunities for abuse of power.
That being the object of such a rule, it seems obvious to us that the, rule
must have been intended to operate with reference to the dates on which the
vacancies occur and not with reference to some other events such as the dates
of declaration or advertisement of the vacancies.
The rules were made by the Govt. in 1967.
Hence, the note occurs at the bottom of Rule 15 that the rotation provided for
will commence from 15-6-1967. This could not obviously be done, under the
Cochin University Act 30, of 1971, which was published in the State Gazette on
13-8-1971. Therefore, for the purposes of applying these rules to the
University, the rotation could only apply to vacancies existing on the date
when the Act came into force and in the order in which they had occurred.
534 It appears that the Syndicate of the
University appointed a Standing Committee to draw up a list of the vacancies,
in the class of posts with which we are concerned, at the time when the Act
came into force, under which the appointments were to be made in accordance
with the rotation rules. This list (Ex. p. 3) drawn up at a meeting of the
Standing Committee of the Syndicate held on 1-1-1973 giving the number and
designations of vacant posts, dates of vacancies, and allocation for the
purposes of the rotation rule and the names of the candidates appointed, runs
as follows :"Regarding the appointments made so far and the appointments
to be made from among those who have been selected after advertisement and
interview, the Committee examined the details of allocations. The following is
the result of the review No. Name of post Date of Allocation Nameof Carried
occurrence candidate over of vacancy APPOINTMENT MADE ON 17-7-1972 1. Lecturer,
SMS.10-7-1971 OpenMrs. Armies George.
2. Lecturer, SMS.9-12-1971 Res Dr. K. C.
Sankarana Ezhava.Narayanan.
3. Professor in Hindi17-7-1972 Open Dr. N. E.
Viswanatha lyer.
APPOINTMENT MADE ON 6-11-1972 4. Professor in
SMS. 10-7-1971 Res. Sch.Dr. N. Paramaswaran C&T Nair Sch.
C&T.,converted as open.
5. Professor in SMS. 16-8-1972 Open Sri N. Renganatha
Reddiar Not joined.
6. Reader in SMS. 16-8-1972 Muslim Dr. K. N.
Nair, Res.
Muslim.
7. Lecturer in S MS. 16-8-1972 Open Dr. Jose
Thomas converted PayyapallySch. C &T as Sch. C&T. C/o. is lost and it
is filled open.
8. Lecturer in SMS. 16-8-1972 Res. (L.C.) Dr.
C. N. Pursushotha N.A. man Nair, L. C. Not joined No. Clo. as it is filled by
open.
9. Lecturer in SMS. 16-8-1972 Open Sri Alex.
P. Lukose.
POST TO BE FILLED ON 6-1-1973
10. Reader in Hindi 10-7-1971 Res. O.B.C.This
vacancy has occurred earlier.
11. Research Asstt. in Law 10-7-1972 Open.
12. Lecturer in Physics 3-5-1972 Res. Sch.
C&T.
13. Lecturer in Physics 10-12-1972 Open.
535 The above mentioned document was signed
by the Pro Vice Chanceilor of the University. It indicates that the vacancy of
a Reader in the Department of Hindi was the first to occur. But, instead of
allocating it to the open competition class, for the purpose of applying the
rotation rule, it was allocated to the reserved block of posts. This was also
an illegality complained of by the respondent Dr. Nair.
The stand of the University was that it had
followed the rotation rule according to which appointments were to be made
alternately by a general or open competition and by choice restricted to backward
groups. Dr. A.
Ramchandra,Dev, however, took up the position
that the University could even alter the rules, inasmuch as it had the power to
apply them "mutatis-mutandis", according to situations as they C
arose. it appears that, at the time of arguments in the High Court, the
University adopted the stand of Dr. A. Ramchandra Dev on this question. It
seems to have been contended in the High Court on behalf of the University that
it was empowered to make the changes in the rules to meet the particular needs
of the University so as to enable it to implement the provisions of Section
6(2) of the Act in the way it thought fit.
We think that the High Court was right in
holding that the power to apply the rules "mutatis-mutandis" does not
include the power of amending the substantial provision in the rules. The High
Court held : "Formal and inconsequential changes for dovetailing the rules
into the frame work of the Act, alone seem to be contemplated".
We think that the High Court was right in
confining the power of the University to making only what are necessary
"adaptations" so as to make the rules applicable to those in the
service of the University in place of the Government servants for whom they
were promulgated. It could include a power to ignore only such parts as may be
inapplicable or in conflict with Act itself. An instance of this would be, as
pointed out above, commencement of the application of the rules after the Act
came into force instead of in 1967 when, according to a note in Rule 15, the
Rules had to be enforced. The High Court rightly held that the Syndicate could
not, in any case, alter the provisions of Section 6(2) of the Act itself which
made it incumbent on the University to apply the rotation rule, as contemplated
under the rules, to every "service, class or category under the
University". It held that "if section 6(2) were to operate on its own
terms, selection, to the post of Reader, for the first time made by the
University, should, in the G first turn, go to the candidate adjudged best on
open competition, and only on the next turn or turns to candidates on the
principle of communal rotation".
If the post of Reader in the Department of
Hindi was the 1st to arise in service under the University, as appears to be
the position from Ex. P. 3, an application of the rotation principle would
compel the first appointment to take place on the basis of an open,
competition. That principle could certainly not be modified by the University
by taking shelter behind the words "Mutatis-mutandis". It has been
stated by the learned Counsel for the University that the validity of 536 the
impugned resolution may be doubtful so far as the withdrawal of the post of
Professor from the application of the above mentioned rules is concerned, but,
learned Counsel submitted, we need not decide that question as we are not
concerned here with An appointment to the post of a Professor. If, however, the
Professors and Lecturers and Readers were all to fall in one class it may
become necessary to consider this question also. Moreover, we indicated below
the two parts of the resolution do not seem to be separable. It is true that
Section 6, sub. s. (2) lodges in the University a power to determine what
should constitute class or category of service under the University. No rigid
formula to fit all circumstances can be laid down and the authority concerned
must be left to define, subject to constitutional limitations, what should be a
class or category. But, this power would not, in our opinion, enable the
University to dispense with the application of the rotation principle itself to
any particular class or category of service under the University as appears to
have been the real object of the resolution of 17-7-1972 with regard to
Professors.
The word 'service' does seem to us to denote,
as the High Court held, various classes or categories of posts within it. It is
obviously the widest class. A classification which puts the whole teaching
staff in one class for purposes of applying the rule would seem unassailable.
But, one which puts all classes and categories of service from the peons to
Professors together may, by destroying the distinction between classes and
categories of service, seem to run counter to the words used in Section 6(2).
As that question is not before us, we refrain from deciding it.
This provision appears to us to be intended
to ensure that, whatever may be the kind of post to be held by a person in a
service "under the University", principles laid down in Rules 14, 15,
16 and 17 must apply in making appointments to it. We are not called upon to
decide here what is meant by a service "under the University" as it
is admitted by both sides that this description applies to the post of a
Reader.
Nor have we to determine here the
reasonableness of a classification which may put the teaching and non-teaching
staff in one class or category.
It was submitted by learned Counsel for the
University that the resolution of 17-7-1972 was intended to do no more than to
categorise "Readers, Lecturers and Teaching Assistants," by putting
them into a single class or category, for applying the rules to them
"collectively". If that is all it was meant to do, apart from
attempting to place posts of Professors outside rules 14 to 17, the intention
is expressed in very unsatisfactory and misleading language. It is of course,
open to the University to pass a resolution which does not contravene Section
6(2) of the Act. A resolution which nerely classifies or categorises posts in a
reasonable manner would not offend against statutory provisions. The resolution
of 17-7-1972 is, however, at least partly invalid, on the face of it, by
attempting to place H appointments to the post of a Professor outside the
reservation and rotation rules, altogether, and it is partly at least ambiguous
so that it is difficult to decipher its exact meaning. The second part seems
537 designed, in so far as one may guess its meaning, to provide for Other
Backward Classes" a compensatory quota of reserved appointments in a
category other than that of Professors in lieu of the, removal of posts of
Professors from subjection to the rules. If this is the real object, as it
seems to be, di.; intention was to alter the scope or ambit of the rotation
rule. The second part is apparently a consequence of the exclusion of the
Professors from the operation of the rules which it itself not permissible-and
not an adaptation for the purposes. of applying the rules to the University.
Thus, the two parts seem to be inseparable.
We, therefore, consider the resolution to be
wholly invalid. The validity of Section 6(2) has not been questioned either in
the High Court or here.
We have been informed at the Bar that both
the 1st and the 3rd Responcients, that is to say, Dr. Nair and Dr.
Ramrhandra Dev, are at present holding posts
of Readers in the Hindi department as the needs of the University have
expanded. It may however, be necessary to determine the order of their
appointments after the University his laid down its own method of reasonable
classification either of the whole teaching staff of the University
collectively or by putting various categories of the teaching staff into
separate compartments for the application of the rules. We have held that the
University has, this power provided it is exercised on good and reasonable
grounds. We have only indicated that, on such facts as have come to our notice,
the particular vacancy for which both Dr. Raman Nair and Dr. Ramchandra Dev
were competing seemed to us to be the first to arise for the purposes of
applying Section 6(2) of the Act. As this matter was not fully investigated,
and, the power is vested in the University to make its own classification
within the limits indicated by us. we think that it is desirable that the
University should be left to make its own reasonable classification in
accordance with the principles laid down above by us so as to determine which
of the two Readers was entitled to be appointed earlier. In other words, the
Syndicate of the University will have to pass a fresh resolution which is in
accordance with the law as explained by us and then to apply the rules in
conformity with such a resolution in exercise of the powers possessed by the
University.
The result is that we dismiss this appeal
subject to the elucidation given by us of the manner in which the directions
issued by the High Court to the University to act in accordance with Section
6(2) of the Act are to be carried out by the University. We make no order as to
costs.
V.P.S.
Appeal dismissed.
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