Dr.
Suresh Chandra Verma & Ors Vs. Chancellor, Nagpur University & Ors [1990] INSC 242 (21 August 1990)
Sawant,
P.B. Sawant, P.B. Kasliwal, N.M. (J)
CITATION:
1990 AIR 2023 1990 SCR (3) 883 1990 SCC (4) 55 JT 1990 (3) 552 1990 SCALE
(2)338
ACT:
Service
Law: Nagpur University Act, 1974: Sections 32, 57(4)(a), 57(5), 67 and 76.
University
Teaching staff--Employment notice inviting applications-Reservation
category-wise not post-wise/sub- ject-wise--Validity of--Court's interpretation
of Rule--Declaration of that interpretation as bad--Effect of--From the
beginning--Validity of termination orders.
Administrative
Law: Natural justice-Audi alterem partem-Sevices terminated due to change in
law--Not on merits and/or misdemeanow--Whether hearing before termina- tion
necessary.
Practice
and Procedure: Judicial decision--Overruling--Consequences of--Whether operates
retrospectively--Value of precedent.
Words
& Phrases: "Post"--Meaning of.
HEAD NOTE:
The
respondent University issued an employment notice inviting applications for the
posts of Professors, Readers and Lecturers in different subjects. The notice
mentioned the number of reservations category-wise, but not subject- wise.
Including the petitioners, a number of candidates belonging to both reserved and
non-reserved categories applied. Selection Committees were constituted which recom-
mended 47 candidates for 53 posts; weightage was given to candidates belonging
to the reserved category. Thereafter the Executive Council constituted a
sub-Committee to decide which posts should be reserved. On its recommendations
and on consideration of the backlog of reservations, the Execu- tive Council
decided to set apart 17 posts and gave perma- nent appointments only to 30
candidates. It also decided that in respect of the 17 posts reserved, temporary
appoint- ments would be made pending the availability of suitable candidates
from the reserved category.
On
receipt of some representations expressing grievances against the employment
notice as also the procedure followed in making the appointments, the
Chancellor appointed a one- man Committee to in- 884 quire into the matter. The
Committee submitted its report which was accepted by the Chancellor.
Meanwhile,
a batch of writ petitions was filed in the High Court challenging the
employment notice on the ground that the non-obtaining of the recommendation
from the Board of University Teaching and Research before issuing the
employment notice was bad in law in view of the provisions of Section
32(2)(iii) of the Act. The High Court quashed the employment notice and set
aside the appointments made to the posts. It also restrained the University
from making any appointment without obtaining the recommendations as afore-
said.
Taking
into consideration the report of the one-man committee and the decision of the
High Court, the Chancellor directed the Vice Chancellor to terminate the
services of all the appointees including the appellants. Accordingly, the
Vice-Chancellor issued orders of termination of the services of the appellants
and other similarly appointed.
Although
the services were thus terminated, the Vice- Chancellor on the same day issued
another order in exercise of his emergency powers under Section 11(4) of the
Act and appointed all the appellants and others to the same posts protecting
their pay and allowances and making it clear to the appointments were
temporary.
However
the matter went before a Full Bench since one Division Bench took the view that
post-wise reservation was not necessary, and another Division Bench differed
from it.
The
Full Bench held that general reservations were in breach of the provisions of
the Act and against reservation policy and hence illegal. It also held that
since the appointments were not in accordance with law from the beginning, the
termination of the appellants' services was legal.
Aggrieved,
the appellants have preferred the present appeal against the decision of the
Full Bench.
Dismissing
the appeal, this Court,
HELD:
1. The employment notice dated July 27, 1984
was bad in law since it had failed to notify the reservations of the posts
subject-wise and had mentioned only the total number of reserved posts without
indicating the particular posts so reserved subject-wise. [893G]
2. The
word "post" used in S. 57(4)(a) of the Nagpur University Act, 1974
has a relation to the faculty, disci- pline, or the subject for 885 which it is
created. When therefore, reservations are re- quired to be made "in
posts", the reservations have to be postwise, i.e., subjectwise. The mere
announcement of the number of reserved posts is no better than inviting applica-
tions for posts without mentioning the subjects for which the posts are
advertised. When, therefore, Section 57(4)(a) requires that the advertisement
or the employment notice would indicate the number of reserved posts, if any,
it implies that the employment notice cannot be vague and has to indicate the
specific post, i.e. the subject in which the post is vacant and for which the
applications are invited from the candidates belonging to the reserved classes.
A nonindication of the post in this manner itself defeats the purpose for which
the applications are invited from the reserved category candidates and
consequently negates the object of the reservation policy. That this is also
the intention of the legislature is made clear by Section 57(4)(d) which
requires the selection committee to interview and adjudge the merits of each
candidate and recommend him or her for appointment to "the general
posts" and "the reserved posts", if any, advertised. [891H;
892A-C]
3.1 It
is common knowledge that the vacancies in posts in different subjects occur
from time to time according to the exigencies of the circumstances and they
arise unequally in different posts. There may not be vacancies in one or some
posts whereas there may be a large number of vacancies in other posts. In such
circumstances, it is not possible to comply with the minimum reservation
percentage of 34 visa- vis each post. It is for this reason that the Government
Resolution dated 30.3.81 states that although minimum per- centage of reserved
posts may not be i"filed in one or some posts, it will be enough if in
that year it is filled in, taking into consideration that total number of
appointments in all the posts. This, however, does not absolve the ap- pointing
authority from advertising in advance the vacancies in each post and the number
of posts in such vacancies meant for the reserved category, and inviting
applications from candidates belonging to the reserved and unreserved catego- ries
with a clear statement in that behalf. In fact, the overall minimum percentage
has to be kept in mind, as stated in the Resolution, at the time of issuing the
employment notice or the advertisement as the case may be. [892H; 893A-C]
3.2 However,
the course to be adopted would depend upon the unit of reservations, the period
over which the backlog is to be carried, the number of appointments already
made in the relevant posts, the availability of candidates from the reserved
category etc. [893F] Dr. Raj Kumar v. Gulbarga University, I.L.R. 1990 KAR 2125, referred to.
886
4. In
the instant case, there is nothing on record to show that the method of giving weightage
to the candidates was not followed in respect of reserved category candidates even
if they had not applied for the post in the reserved seats. There is also
nothing on record to show whether any candidate belonging to the reserved
category had applied for a particular post in a reserved seat, without the
prior knowledge that the post was reserved. It is, therefore, difficult to
understand as to how the selection committees proceeded to give weightage to
the candidates without know- ing whether they had applied for reserved or nonreserved
seats. What is more objectionable in the procedure was that its Executive
Council proceeded to classify the posts in different subjects between reserved
and non-reserved posts after the lists of selected candidates were received
from different selection committee. This method was open to an obvious objection
since it gave a scope to eliminate unwant- ed selected candidates at that
stage. [891A-D]
5.
When the court decides that the interpretation of a particular provision as
given earlier was not legal it in effect declares that the law as it stood from
the beginning was as per its decision, and that it was never the law otherwise.
This being the case, since the Full Bench and now this Court has taken the view
that the interpretation placed on the provisions of law by the Division Bench
in Bhakre's case was erroneous, it will have to be held that the ap- pointments
made by the University on March 30, 1985 pursuant to that decision were not
according to law. Hence, the termination of the services of the appellants was
in compli- ance with the provisions of section 57(5) of the Act. [894B-D]
6.
Since the services of the appellants are to be termi- nated in view of the
change in the position of law and not on account of the demerits or misdemeanour
of individual candidates, it is not necessary to hear the individuals before
their services are terminated. The rule of audi alterem partem does not apply
in such cass, and therefore, there is no breach of the principles of natural
justice. [894D-E]
7. It
seems, some of the appellants had resigned from their earlier jobs and joined
the University. Some of them have become overaged for making any fresh
application, while others will have no chance either because the posts as per
the new advertisements of 1987 are reserved or non-reserved and they belong to
the other category. It is recommended on compassionate grounds that the
University may take into consideration the relevant facts pertaining to each of
the appellants, and if it is possible, accommodate them without transgressing
the law and the claim of other eligible candi- dates. [894F-G] 887
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1451 of 1988.
From
the Judgment and Order dated 14.3.88 of the Bombay High Court in W.P. No. 1033
of 1987.
M.S. Nesargi,
R.C. Mishra and Dr. Meera Agarwal for the Appellants.
Vinod Bobde,
Ms. J. Wad and A.M. Khanwilkar for the Respondents.
V.N. Ganpule
for the State.
The
Judgment of the Court was delivered by SAWANT, J. The two questions raised in
this appeal are:
(i)
Whether the employment notice issued by the respondent University on July 27, 1984 ought to have indicated reserva- tions
postwise, and (ii) Whether, assuming that the said notice was invalid the
termination of services of the appellants on April 21, 1987 was valid?
2. The
University issued the employment notice in ques- tion inviting applications for
a total of 77 posts which included 13 posts of Professors, 29 posts of Readers
and 35 posts of Lecturers in different subjects ranging from Eco- nomics,
Politics and Sociology to Physics, Pharmacy and Geology. The notice mentioned
total number of reservations categorywise but not subjectwise as follows:
Professors
- Scheduled Castes-3, Scheduled Tribes-2 and VJ/NT- 1 Readers - Scheduled
Castes-6, Scheduled Tribes-4 and VJ/NT-2 Lecturers - Scheduled Castes-7, Scheduled
Tribes-5 and VJ/'NT-4 A number of applications were received for the posts from
candidates including the petitioners belonging to both reserved and non reserved
castes for all the three categories of posts, viz., Professors, Readers and
Lecturers. This advertisement was corrected by Corrigendum of February 1, 1985. Thereafter, a further employment
notice 888 for additional posts in all the three categories was issued on August 1, 1985 but we are not concerned with the
same.
Different
selection committees in all 53 in number were constituted and they recommended
47 candidates for 53 posts.
It
appears that while recommending the selections, the committees also gave weightage
to the candidates belonging to the reserved castes. Thereafter, the Executive
Council constituted a sub-committee to decide which posts should be reserved
for the reserved castes. On the recommendation of the sub-committee and after
taking into consideration the backlog of reservations, the Executive Council
decided to keep apart 17 posts and made permanent appointments only to 30 out
of 47 candidates by its appointment orders issued on March 30, 1985 for the academic year 1985-86. As
regards 17 posts which were kept apart for reserved candidates, it decided to
fill in the same by temporary appointments for those posts pending the
availability of the suitable candi- dates from reserved castes.
3. It
appears that against these appointments some social workers and organisations
made representations to the Chancellor making a grievance both against the
employment notice as well as the procedure followed in making the said
appointments. By his order dated February 22, 1986, the Chancellor appointed a one-man committee under Section
76 of the Nagpur University Act, 1974 (hereinafter referred to as the 'Act') to
inquire into the matter. The committee submit- ted its report on September 24, 1986 which was accepted by the
Chancellor.
4. In
the meanwhile, a batch of writ petitions was filed in the High Court
challenging the employment notice on the ground that the non-obtaining of the
recommendation from the Board of University Teaching and Research ('BUTR' for
short) before issuing the employment notice was bad in law in view of the
provisions of Section 32(2) (iii) of the Act. The High Court accepting this
contention quashed the employment notice and set aside the appointments to the
posts which were challenged in those petitions. In all the petitions the Court
also restrained the University from making any ap- pointment without obtaining
the recommendations from the BUTR.
Taking
into consideration both the report of the one-man committee and also the
decision of the High Court, the Chancellor directed the Vice-Chancellor to
terminate the service of all the appointees including the appellants and
accordingly the Vice-Chancellor issued orders of termination of services of the
appellants and others similarly appointed on April 21, 1987. The termination orders mentioned four grounds as follows:
889
(a) the reservation policy adopted by the University was contrary to Section 57
of the Act;
(b)
the decision of the Executive Council allocating all reserved posts to VIth
Plan posts were arbitrary and dis- criminatory;
(c) the
University had failed to comply with the mandatory provisions of Section 32 of
the Act since it had not con- sulted the BUTR; and (d) that the employment
notice was not in accordance with law.
It may
be mentioned here that although the services were thus terminated by the said
order the Vice-Chancellor on the same day issued another order in exercise of
his emergency powers under Section 11(4) of the Act and appointed all the
appellants and others to the same posts protecting their pay and allowances at
the same time making it clear that the appointments were temporary.
We are
concerned in this appeal only with two grounds as stated at the outset. The
third ground, viz., whether the recommendations of BUTR were mandatory before
the issuance of the employment notice was not pressed before the Full Bench
from which the present appeal arises. It appears that on the first ground,
viz., whether the general reservation instead of the postwise reservation was
illegal, there was a difference of opinion between two Division Benches of the
High Court. One Division Bench in Writ Petition No. 1876 of 1984 (hereinafter
referred to as the 'Bhakre's case' (decid- ed on December 7, 1984 took the view
that the postwise reservation was not necessary whereas another Division Bench
differed with the said view and sent the papers to the learned Chief Justice
for referring the matter to a larger Bench and the issue referred to the larger
Bench was as follows:
"Is
non-reserving the posts of University teachers subject- wise in the employment
notice a breach of letter and spirit of reservation policy contained in Section
77C read with Section 57 of the Act?" That being the only issue, the Full
Bench was really called upon to answer it alone. However, thereafter by the the
consent of parties one more issue was raised before the Full Bench which is the
second of the two questions which we have to decide in this appeal, viz.,
whether, notwithstand- ing the illegality of the general reservation, the
services of the appellants were liable to be terminated. On the first 890
issue, the Full Bench held that general reservations were in breach of the
provisions of the Act and against the reserva- tion policy and, therefore,
illegal. On the second issue, by majority the Full Bench held that since the
appointments were not according to law from the beginning, 'the termina- tion
of the appellants' services was legal.
6. As
regards the first question, we have narrated earlier the method which was
adopted by the University for reserving the posts. It announced the posts categorywise
as Professors, Readers and Lecturers in different subject and made a blanket
declaration that 6 of the posts of Professor, 12 of the posts of Readers and 16
of the posts of Lecturers would be reserved for backward castes. Neither the Universi-
ty nor the candidates knew at that time as to for which of the subjects and in
what number the said posts were re- served. The result was that the candidates
belonging to the reserved category in particular, who wanted to apply for the
reserved posts did not know for which of the posts they could apply and whether
they could apply at a11 for the posts in the subjects in which they were
qualified. That this could be the expected consequence of such an employment
notice can legitimately be inferred and need not be and indeed cannot be,
demonstrated by evidence of what actually happened, for there may be number of
candidates who on account of the said uncertainty might have refrained from
applying for the posts as against those who applied to take a chance. What is
further, the selection committees which were appointed to interview the
candidates for the respec- tive posts did not also know whether they were
interviewing the candidates for reserved posts or not, and to assess merits of
the candidates from the reserved category as such candidates. The contention
advanced on behalf of the appel- lants that the selection committees even
without know wheth- er the posts concerned were reserved or not, had given weightage
to the candidates from the reserved category and, therefore, it cannot be said
that any injustice had resulted to them is without merit. In the first
instance, the conten- tion proceeds on the footing that all those belonging to
the reserved category who wanted to apply for a11 the said posts had done so
even without knowing that the concerned posts were reserved. Secondly, it also
presumes that all eligible candidates from unreserved category had applied for
the posts without knowing whether the posts were reserved or not. The
possibility that many eligible candidates belonging to both reserved and unreserved
categories might not have taken the risk and chosen to gamble cannot be ruled
out.
This
argument further ignores the fact that the suitability of a candidate from a
reserved category to the particular post has to be adjudged by taking into consideration
various factors and the desired 891 result cannot be obtained by merely giving
uniform weightage marks to the candidates concerned which was the only method
followed by the selection committees while selecting the candidates. Further,
there is nothing on record to show that this method of giving weightage to the
candidate was not followed in respect of reserved category candidates even if
they had not applied for the post in the.reserved seats.
What
is more, there is also nothing on record to show wheth- er any candidates
belonging to the reserved category has applied for a particular post in a
reserved seat, without the prior knowledge that the post was reserved. It is,
therefore, difficult to understand as to how the selection committees proceeded
to give weightage to the candidates without knowing whether they had applied
for reserved or nonreserved seats. What is more objectionable in the proce- dure
was that its Executive Council proceeded to classify the posts in different
subjects between reserved and non- reserved posts after the lists of selected
candidates were received from different selection committees. This method was
open to an obvious objection since it gave a scope to eliminate unwanted
selected candidates at' that stage.
Whether
it occurred in the present case or not is immaterial for testing the validity
and the propriety of the method followed by the University. As has been stated
earlier, in fact, after the receipt of the list of selected candidates not only
the Executive Council constituted yet another committee to decide which of the subjectwise
posts should be reserved or not but the Executive Council also decided that
although candidates for 47 posts were selected only 30 of them should be
appointed permanently. The latter included some backward class candidates for
reserved posts so catego- rised later. But 17 of the posts were set apart
although the candidates were selected for them, and they were so set apart for
being filled in afresh by candidates belonging to the reserved category.
Interestingly, however, the employ- ment notice issued subsequently for these
17 posts mentioned reservations postwise (subjectwise).
7. The
argument based on Section 57(4)(a) of the Act to support the procedure adopted
by the University is, accord- ing to us, not well merited. The contention is
that since Section 57(4)(a) requires the University to state in the
advertisement only the total number of posts and the number of reserved posts
and not postwise, i.e., subjectwise, the employment notice in question was not
bad in law. According to us, the word "post" used in the context has
a relation to the faculty, discipline, or the subject for which it is created.
When, therefore, reservations are required to be made "in posts", the
reservations have to be postwise, i.e., subjectwise. The mere announcement of
the number of 892 reserved posts is no better than inviting applications for
posts without mentioning the subjects for which the posts are advertised. When,
therefore, Section 57(4)(a) requires that the advertisement or the employment
notice would indi- cate the number of reserved posts, if any, it implies that
the employment notice cannot be vague and has to indicate the specific post,
i.e., the subject in which the post is vacant and for which the applications
are invited from the candidates belonging to the reserved classes. A non-indica-
tion of the post in this manner itself defeats the purpose for which the
applications are invited from the reserved category candidates and consequently
negates the object of the reservation policy. That this is also the intention
of the legislature is made clear by Section 57(4)(d) which requires the
selection committees to interview and adjudge the merits of each candidate and
recommend him or her for appointment to "the general posts" and
"the reserved posts", if any, advertised.
8. A
support was also sought to be derived by the appel- lants to their contention
from the policy of reservation as enunciated in Government Resolution dated
March 30, 1981 wherein instructions were issued in the matter in exercise of
the power conferred on the Government under Section 77(c) of the Act. The
contention was that since in para 3(b) of the said Resolution it is stated that
"similarly, at any given time of recruitment to the teaching posts, only
the total number of reserved vacancies and the sections from which they are to
be filled in should be determined. It would be enough if the required
percentage is fulfilled as a whole and not with reference to any particular post.
If the reserved vacancies cannot be filled, then so many posts as cannot be
filled in, may be kept vacant for six months and should be again advertised
thrice. If, even after readver- tising the posts three times, suitable
candidates belonging to the reserved category do not become available, they may
be filled in by candidates belonging to the "open category".
We are
afraid that this interpretation placed on the afore- said contents of the
Government Resolution stems from their misreading. Read in the context in which
the said contents appear, it is clear that what is sought to be conveyed by
them is that although at any given time the total percentage of reservation,
viz. 34 is not made up vis-a-vis particular post or posts, it would be an
enough compliance with the Resolution if the total number of vacancies filled
in all the posts together conform to the said percentage. It is common
knowledge that the vacancies in posts in different subjects occur from time to
time according to the exigencies of the circumstances and they arise unequally
in different posts. There may not be vacancies in one or some posts whereas
there may be a large number of vacancies in other 893 posts. In such
circumstances, it is not possible to comply with the minimum reservation percentage
of 34 vis-a-vis each post. It is for this reason that the Resolution states
that although minimum percentage of reserved posts may not be filled in one or
some posts, it will be enough if in that year it is filled in taking into
consideration the total number of appointments in all the posts. This, however,
does not absolve the appointing authority from advertising in advance the
vacancies in each post and the number of posts in such vacancies meant for the
reserved category, and inviting applications from the candidates belonging to
the reserved and unreserved categories with a clear statement in that behalf.
In fact, the overall minimum percentage has to be kept in mind, as stated in
the Resolution, at the time of issuing the employment notice or the
advertisement as the case may be.
On
behalf of the appellants reliance was also sought to be placed on a Full Bench
decision of the Karnataka High Court in Dr. Raj Kumar v. Gulbarga University,
AIR 1990 KAR 2 125. We do not see how the decision in question helps the
appellants, for the Full Bench has observed there that general reservation has
to be cadrewise and subjectwise. But an exception could possibly be made in
cases like the one of professors in which post available in each of the
subjects is only one while grouping all of them together for purposes of
reservation so that at least in the subjects in which the candidates belonging
to the reserved category are available, they could be accommodated. It is not
necessary for us in this case to express our opinion on the correct course to
be adopted when only one post is available in a particular subject at a given
time. The course to be adopted would depend upon the unit of reservations, the
period over which the backlog is to be carried, the number of appointments
already made in the said posts, the availability of candi- dates from the
reserved category etc. What is material from our point of view in this case is
to point out that even the Karnataka Full Bench has taken the view that
generally reservation had to be cadrewise and subjectwise. It was also a case
of the filling in of the vacancies in teaching posts in a University.
We
are, therefore, in complete agreement with the view taken by the Full Bench
that the employment notice dated July 27, 1984 was bad in law since it had
failed to notify the reservations of the posts subjectwise and had mentioned
only the total number of reserved posts without indicating the particular posts
so reserved subjectwise.
9. The
second contention need not detain us long. It is based primarily on the
provisions of Section 57(5) of the Act. The contention 894 is that since the
provisions of that section give power to the Chancellor to terminate the
services of a teacher only if he is satisfied that the appointment "was
not in accord- ance with the law at that time in force" and since the law
at that time in force, viz., on March 30, 1985 when the appellants were
appointed, was the law as laid down in Bhakre's case (supra) which was decided
on December 7, 1984, the termination of the appellants is beyond the power of
the Chancellor. The argument can only be described as naive. It is unnecessary
to point out that when the court decides that the interpretation of a
particular provision as given earli- er was not legal, it in effect declares
that the law as it stood from the beginning was as per its decision, and that
it was never the law otherwise. This being the case, since the Full Bench and
now this Court has taken the view that the interpretation placed on the provisions
of law by the Division Bench in Bhakre's case (supra) was erroneous, it will
have to be held that the appointments made by the University on March 30, 1985
pursuant to the law laid down in Bhakre's case (supra) were not according to
law. Hence, the termination of the services of the appellants were in
compliance with the provisions of Section 57(5) of the Act.
When,
therefore, the services of the appellants are to be terminated in view of the
change in the position of law and not on account of the demerits or misdemeanour
of indi- vidual candidates, it is not necessary to hear the individu- als
before their services are terminated. The rule of audi altrem partem does not
apply in such cases and, therefore, there is no breach of the principles of
natural justice. In the result. we are of the view that there is no merit in
this case. The appeal, therefore, stands dismissed. In the circumstances of the
case, however, there will be no order as to costs.
10.
However, it is pointed out to us that some of the appellants had resigned from
their earlier jobs and joined the University, some of them have become overaged
for making any fresh application while others will have no chance either
because the posts as per the new advertisement of 1987 are either reserved or
non-reserved and they belong to the other category. We can, therefore, only
recommend that the University may take into consideration the relevant facts
pertaining to each of the appellants, and if it is possible, accommodate them
without transgressing the law and the claims of other eligible candidates. We
make it clear that this recommendation is not a direction and is made purely on
compassionate grounds. It is to be followed only if it is possible for the
University to do so without giving rise to further litigation by candidates who
may be ag- grieved on that account.
G.N.
Appeal dismissed.
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