Varanasaya Sanskrit Vishwavidyalaya
& ANR Vs. Dr. Rajkishore Tripathi & ANR [1976] INSC 305 (26 November
1976)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH RAY,
A.N. (CJ) SINGH, JASWANT
CITATION: 1977 AIR 615 1977 SCR (2) 213 1977
SCC (1) 279
ACT:
Varanasava Sanskrit Vishwa Vidyalaya
Adhiniyam, 1956, s. 13(7), Whether empowers Vice Chancellor to make permanent
appointments without confirmation by normal appointing body--Whether prevails
over power of Executive Committee under s. 23(1)(g).
Civil Procedure Code, Order VI Rule 4,
whether general allegations of collusion satisfy requirements of.
HEADNOTE:
A permanent lecturer's post fell vacant in
the appellant University, and the Executive Committee which ordinarily made the
appointment under s. 23(1) (g) of the Varanasaya Sanskrit Vishwa Vidyalaya
Adhiniyam, 1956, not being in session, the Vice Chancellor exercised his
emergency powers under s. 13(7) of the Act to appoint the respondent on the
recommendation of a Selection Committee of the University.
Later, the Executive Committee, when apprised
of the appointment, refused to treat it as permanent and decided to
re-advertise the post. The respondent's suit for permanent injunction against
the termination of his services was dismissed by the Trial Court but decreed on
appeal. On second appeal, the High Court upheld the decree.
The respondent contended that his appointment
by the Vice Chancellor, made under s. 13(7), was permanent and could not be
nullified by the Executive Committee as its resolution was collusive and
inoperative.
Allowing the appeal, the Court,
HELD: (1) The extraordinary power under s.
13(7) of the Act are intended for certain emergent situations necessitating
"immediate action." The Vice Chancellor has to report the action
taken to the authority or other body "which in the ordinary course would
have dealt with the matter" The object of such a report is to leave the
final decision to that body when it does meet. The Executive Committee had the
final power to appoint and to specify conditions of service under s. 23(1)(g)
of the Act. The powers of the Vice Chancellor were confined to making a
tentative decision which was subject to confirmation by the Executive Committee.
[216 G-H, 217 B-C] (2) It is not enough to state, in general terms, that there
was "collusion" without particulars. By general allegations of
alleged collusion, the plaintiff-respondent seemed to imply some kind of fraud,
but no such particulars of that fraud or collusion were given as would satisfy
the requirements of Order VI Rule 4, Civil Procedure Code.
[217 E-F] Bishundeo Narain & .Anr. v.
Seogeni Rai & Ors. [1951] S.C.R. 548 at 556, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 473 of 1976.
(Appeal by Special Leave from the Judgment
and Order dated 26-2-1976 of the Allahabad High Court in Second Appeal No.
2068/75).
D.P. Singh, R.P. Singh, L.R. Singh, Rajev
Dutta and P.K. Jain, for the appellants and R. 2.
214 D. Mukherjee and Amlan Ghosh, for
respondent No. 1.
The Judgment of the Court was delivered by
BEG, J. The respondent was initially appointed as an Accountant 10th July,
1969, in the Varanasaya Sanskrit Vishwavidyalaya Varanasi (hereinafter referred
to as theUniversity'). On 4th December, 1969, he was transferred to another
post, that of a "Senior Assistant". In January, 1970, Dr. Shambhu
Nath Singh, who was the permanent Lecturer in Hindi in the University proceeded
on long leave, and the plaintiff-respondent, being already in the service of
the University, was asked to teach classes for the time being Applications
'were invited for filling up the, post of Dr.
Singh. The advertisement said that the
appointment was to be temporary but likely to be made permanent later. The
plaintiff-respondent, who was already officiating, also applied.
He was temporarily appointed on 25th
February, 1970. On 23rd April, 1970, the Registrar of the University gave the
plaintiff[respondent a notice that his temporary appointment would terminate on
30th April, 1970. The plaintiff-respondent promptly brought his first suit in
the Court of Munsif City, Varanasi, to restrain the University from appointing anyone
else in his place; but, this suit was ultimately dismissed. On 15th July, 1970,
Dr. Singh had resigned from his post so that the permanent vacancy was there to
be filled up. At that time, the plaintiff's suit, mentioned above, was still
pending. A Selection Committee of the University interviewed candidates,
including the plaintiff respondent on 2nd November, 1970, and submitted a list
of names for appointment to the post. In this list, the plaintiff-respondents
name was placed first. As the Executive Committee of the University was not in
session, it appears that the Vice Chancellor appointed the plaintiff on 1st
February, 1971, on the basis of the recommendations of the Selection Committee.
The Vice Chancellor purported to act under Section 13, sub. s. (7) of the
Varanasaya Sanskrit Vishwa Vidyalaya Adhiniyam, 1956 (hereinafter referred to
as 'the Act'). The Executive Committee of' the University then passed a
resolution on 17th or 18th March, 1971, approving what it assumed to be the
recommendation of the Selection Committee to appoint the plaintiff-respondent
temporarily. It also decided to advertise for the post again. On 10th April,
1971, the plaintiff-respondent was informed by the Registrar of the University,
communicating the decision of the Executive Committee that his appointment was
to continue only, upto the end of the current academic session.
On 15th May, 1971, the plaintiff-respondent
filed his second suit, now before us, for a permanent injunction to restrain
the appellant University from terminating his services.
This suit was dismissed by an Additional
Civil Judge. On an appeal it was decreed by the Additional District and Sessions
Judge of Varanasi. The High Court of Allahabad, in second appeal, affirmed the
judgment and order under appeal before it. The defendant University is now
before this Court by grant of special leave to appeal.
The case of the plaintiff-respondent was:
firstly, that the vacancy in which he was to be appointed being permanent and
the procedure of appointment through a Selection Committee being meant for
permanent appointments, the plaintiff respondent was actually recommended for
215 a permanent appointment, but, there had been an alteration and
interpolation in the recommendation of the Selection Committee so as to make it
appear that the recommendation was only for a temporary appointment secondly,
that the Vice Chancellor, in any case, had the power to make a permanent
appointment under Section 13, sub. s. (7) of the Act and he had done so,
thirdly, that the plaintiff-respondent's appointment being complete and
permanent, the Executive Committee of the University had no power left to
nullify it;
and lastly, that the authorities of the
University, that is to say the Vice Chancellor and the Executive Committee, had
(in the words used by the plaintiff-respondent):
"xx xx in collusion with one another
with a view to put an end to the plaintiff's services as Lecturer in Hindi in
utter disregard of the statutes and rules and the appointment letter issued by
the then Vice Chancellor have collusively arranged and made manipulation in the
report of Selection Committee and resolution of the Executive Committee for an
order dated 10th April, 1971, and, in colourable exercise of power, are
threatening to treat the plaintiff's appointment as continuing till the end of
Session but the plaintiff is continuing to discharge his function as permanent
lecturer in Hindi and on account of interim injunction granted in suit No. 289
of 1971 for permanent injunction restraining the defendants terminating the
services of the plaintiff the defendants have not been able to do any act
adverse to the interest of the plaintiff".
The Trial Court had held that, even if there
had been an interpolation of the word temporary in the recommendation of the
Selection Committee for a proposed appointment, it did not affect the result
because the Vice Chancellor had neither the power to make a permanent
appointment nor had he done so by means of his order dated 1st February, 1971,
which merely said that the plaintiff-respondent was appointed to lecture
without specifying whether the appointment was to be temporary or permanent.
It appears to us that the Appellate District
Court had been very much carried away by the fact that there had been, in its
opinion, an alteration or interpolation in the recommendation of the Selection
Committee although the Committee had no power whatsoever to determine the
nature of the appointment of the plaintiff-respondent. The Appellate Court had,
therefore, reached the conclusion, which did not really follow from this
finding, that the appointment of the plaintiff-respondent was permanent in the
eye of law. It also held that the Executive Committee had no power whatsoever
to alter or touch the terms of the appointment made by the Vice Chancellor,
which amounted to an appointment on probation for two years.. It reached this
surprising conclusion despite the complete absence in the Vice Chancellor's
order of any mention of a probation. The Appellate Court had granted an
injunction in the following terms:
"The defendants-respondents are permanently
restrained from advertising the post of Lecturer in Hindi and from causing any
interference in the plaintiff's discharge of his duties as lecturer in Hindi in
the Varanasaya Sanskrit Vishwavidyala by terminating his services or from
withholding his salary in pursuance of resolution No. 44 dated 17/18-3-1971
passed by the Karya Karitini Parishad of the Varanasaya Sanskrit Vishwavidyalaya
and order No. 3 dated 10-4-1971 (Ex. 1 ) passed by the defendant-respondent No.
3".
The High Court, in agreement with the first
Appellate Court, had interpreted Section 13(7) of the Act as conferring the
power of absolute appointment to a permanent vacancy upon the Vice Chancellor.
It had repelled the contention that Section 23(1)(g) of the Act gives exclusive
powers to the Executive Committee to make appointments of teachers because that
power is: "Subject to the provisions of this Act and the Statutes".
The power is "23 (1) (g) to appoint the officers, teachers and other
servants of the Vishva Vidyalaya, to define their duties and the conditions of
their service and to provide for the filling of casual vacancies in their
posts," The High Court sustained the injunction, but had modified it
considerably by what it called a clarification in the following words:
"xxx as it is not a yet certain whether
the position of the plaintiff-respondent at present is that of probationer or a
permanent employee, if for any valid reason the services of the plaintiff are
terminated hereafter, the permanent injunctions granted to the plaintiff-respondent
by the lower appellate court shall become inoperative and unenforceable".
After the High Court had diluted the
injunction in a type of case in which the desirability of granting such a
relief was very doubtful, it was perhaps not very necessary for this Court to
consider the matter under Article 136 of the Constitution. Nevertheless, as
this Court had thought fit to grant special leave in this case and the High
Court's findings are not unequivocal, we propose to decide the question of
interpretation of Section 13 (7) of the Act and other questions which appear to
us to have a bearing on the question whether it is desirable for Courts to
interfere by means of an injunction in the affairs of educational institutions.
The High Court itself has held that the
ordinary power of making appointments of teachers of the University and of
defining the nature of appointments and specifying conditions of service in
such cases is vested in the Executive Committee. The emergency powers under
Section 13 (7 ) of the Act are obviously intended for certain emergent situations
necessitating "immediate action". Before they can be exercised it
must appear that there is, in fact, such a situation as to warrant the exercise
of extraordinary powers conferred under Section 13 ( 7 ) of the Act. It is
apparent that the Vice Chancellor has to report the action taken to the
authority or other body "which in the ordinary course would have dealt
with the matter". It seems to us to be rather extraordinary that despite
these clear indications of the situation in which 217 and the extent to which
the Vice Chancellor may exercise his emergency powers, it should have been held
by the first Appellate Court and affirmed by the High Court that the Vice
Chancellor had a power to make an absolute or clear appointment without any
restriction or obligation to place the matter before the Executive Committee
for confirmation. We find that the Appellate Court had gone to the extent of
saying that the Executive Committee had "no jurisdiction" or power
left to consider the case. We think that this is an impossible view to take in
view of the clear meaning of the words used in Section 13(7) of the Act. The
object of the provision for reporting the matter to the body which deals with
it in the ordinary course could only be to leave the final decision to that
body when it does meet. In other words, the powers of the Vice Chancellor was,
in our opinion, confined to making a tentative decision which, whether he meant
the appointment to be temporary or permanent, was subject to confirmation by
the Executive Committee. Until then it was not final. When that body refused to
treat the appointment as permanent and to re-advertise the post, it clearly
indicated its ;intention to specify the nature of the plaintiff-respondent's appointment
which it alone could do.
Although we are not satisfied that
circumstances existed which justified the use of emergency powers of the Vice
Chancellor under Section 13(7) of the Act, yet, we do not think it possible to
enter upon this enquiry as no argument seems to us to have been advanced on
this aspect in the High Court or in the District Courts. We, however, think
that the first Appellate Court had much too lightly believed that the
plaintiff-appellant had been a victim of some kind of fraud, when no such
particulars of that fraud or collusion were given as would satisfy the
requirements of Order VI, Rule 4, Civil Procedure Code, which lays down:
"In all cases in which the party pleading
relies on any misrepresentation, fraud, breach of trust, wilful default, or
undue influence, and in all other cases in which particulars may be necessary
beyond such as are exemplified in the forms, aforesaid, particulars (with dates
and items if necessary) shall be stated in the pleading".
We do not think it is enough to state in
general terms that there was "collusion" without more particulars.
This Court said in Bishundeo Narain & Anr. v. Seogeni Rai & Ors.
C) (at p.556) as under:
"General allegations are insufficient
even to amount to an averment of fraud of which any Ct. ought to take notice,
however strong the language in which they are couched may be, and the same
applies to undue influence and coercion".
We have already set out the general
allegations of alleged collusion by which the plaintiff-respondent seemed to
imply some kind of fraud. He indicated no reason for this and made no specific
allegation against any particular person.
(1) [1951] S.C.R. 548, 556 218 Apart from
some suspicion surrounding the alleged alterations in the recommendation of the
Selection Committee, which did not have as the Appellate Court rightly held the
power to determine the nature of appointment of the plaintiff-respondent,
nothing more seems to have been proved here at all on the findings of fact
recorded. It is in evidence that the Selection Committee itself was presided
over by the Vice Chancellor. It is true that the alterations have not been
initialed. But, considering the most unsatisfactory and haphazard manner in
which the records of this University had been kept (we have examined the
original records), we would not be surprised if the actual proceedings were,
quite honestly, recorded in this fashion. If the Vice Chancellor, who presided,
had any actual prejudice or animus against petitioner, he would not be a party
to placing the plaintiff's name first let alone the recommendation for a temporary
appointment of an employee whose worth must be known to him. There was nothing
to prevent a Selection Committee from making a particular recommendation of this
kind. It certainly had no power to make the appointment which vested only with
the Executive Committee. But, its powers of recommendation were not fettered.
At any rate, no rule was shown to us as to how it should send its report.
Furthermore, if the Vice Chancellor was prejudiced against the plaintiff respondent
and had even altered records, he could not have passed an order of appointment
without even clearly specifying that the appointment was temporary.. The
original order on the record shows that the petitioner was appointed without
specifying whether he was being appointed permanently or temporarily.
Obviously, if the Vice Chancellor did not have the power to make a permanent
appointment, as we think he did not, we do not think that it would have made a
difference even if he had purported to make a permanent appointment which would
have been invalid. However, on the exact terms of the order of the Vice
Chancellor, it could not be said that he had passed any order for a permanent
appointment. The resolution of the Executive Committee, which was also presided
over by the Vice Chancellor, could not be said to be dishonest or collusive. We
think that the first Appellate Court was unduly swayed by what it thought was a
dishonest interpolation in the report of the Selection Committee.
The result of the consideration of the
applicable provisions and the pleadings and findings of fact in the case before
us is that we think that the plaintiff-respondent has failed completely to show
that the resolution of 17-18th March, 1972, of the Executive Committee, which
had the final power to appoint and to specify conditions of service, under
Section 23(1)(g) of the Act, could be said to be either collusive or
inoperative.
We would also like to observe that, in a
matter touching either the discipline or the administration of the internal
affairs of a University, Courts should be most reluctant to interfere. They
should refuse to grant an injuction unless a fairly good prima-facie case is
made out for interference with the internal affairs of an educational
institutions.
We presume that the plaintiff-respondent has
been working as a result of the injunction granted to him. We, however, see no
justification for continuing the injunction.
We, therefore, allow this appeal to the 219
extent that we withdraw the injunction. This means that the parties are left
free to adjust their differences. If, upon the strength of any facts subsequent
to the institution of the suit now before us, the plaintiff has acquired any
new rights which have been infringed he is free to seek relief.
We make this observation as it was stated on
his behalf that he claims some rights on the strength of subsequent facts too.
As those are not before us, we can say nothing about them.
The result is that we allow this appeal and
set aside the decree and order of the High Court and restore those of the Trial
Court. The parties will bear their own costs throughout.
M.R. Appeal allowed.
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