Dr. Mahak
Singh Dr. Rajvir Singh Vs. Chancellor, Ch. Charan Singh University, Meerut
& Ors [1996] INSC 1367 (31 October 1996)
N.P.
Singh, S.B. Majmudar Majmudar,J
ACT:
HEAD NOTE:
WITH CIVIL
APPEAL NO 4616 OF 1996
These
three appeal arise out of a common judgment rendered by a Division Bench of the
High Court of Judicature at Allahabad in
different writ petitions made by the common appellant Dr. Mahak Singh in Civil
Appeal Nos, 4613-4614 of 1996 and by one of the writ petitioners Dr. Rajvir
Singh, appellant in companion Civil Appeal No.4616 of 1996. These appeals
project a common controversy of a triangular nature amongst three
contestant-teachers attached to Janata Vaidic (Post Graduate) College. Baraut
in Uttar Pradesh which is a degree collage affiliated to the Meerut University. The contestants are Dr. Mahak Singh on the one hand who is
the appellant in first two appeals and respondent No.3 in these appeals Dr.
S.P. Singh as well as respondent NO.5 Dr. Rajvir Singh in these two appeals who
in his turn appellant in the companion Civil Appeal No.4616 of 1996. All the
three of them claimed to be entitled to work as incharge-Principal of the said
Degree Collage on the ground that each one of them was the senior most teacher.
The High Court in its common impugned judgement has taken the view that out of
the three contestants, common respondent No.3 in these appeals , namely, Dr.
S.P. Singh is entitled to work as Acting Principal till regular Principal is
appointed in the college by following the due procedure or law. This conclusion
to which the High Court reached is on the basis that amongst the three
contestants he is the senior most. This is seriously brought in challenge by
the common appellant in the first two appeals Dr. Mahak Singh. His learned
counsel Shri Prashant Bhushan submitted that Dr. Mahak Singh is the senior most
lecturer and hence entitled to be considered for being appointed as Acting
Principal while learned counsel for respondent No.5 submitted in support of his
companion appeal that Dr. Rajvir Singh is entitled to the said post.
Learned
counsel for common respondent No, .3 on the other hand submitted that the High
Court has rightly taken the view that respondent No.3 is the most eligible
candidate for the purpose.
In
order to resolve this triangular controversy a few relevant facts leading to
these proceedings are required to be noted at the outset. Earlier the college
in which these three contestants are working as senior lecturers was affiliated
to Agra University under the Agra University Act, 1926. The said college was,
the therefore, governed by the provisions of the said act and the statute
framed thereunder form the very beginning till 1.7.1965. The Kanpur and Meerut University Act was
enforced with effect from 1.7.1985. As a result thereof the said college got
affiliated to Meerut University. Since no statute of Agra
University. Consequent upon the framing of the
Statutes of Meerut University 26.9.68, the college was thereafter governed by
the said Statutes, The senior most of teacher of affiliated colleges was
governed by Statute No.11.34 of that University. U.P. State Universities Act,
1973 came in to force with effect from 2.9.73. Since no statutes of the Meerut
University continued to govern the service conditions of the teachers of affiliated
college. First Statutes of the Meerut University were framed under U.P. State
Universities Act, 1973 which came in to force from 1.5.77.
For
the purpose of determining the seniority of teachers Chapter XVIII of these
statutes became applicable with effect form 1.5.77. It is not in dispute that
the rate these statutes to which we will make a detailed reference at an
appropriate stage.
The
service Bio-Data of the aforesaid three contestants run as under:
The
appellant in Civil Appeal Nos.4613-4614 of 1996, Dr. Mahak Singh was ap[pointed
on 9.7.59 as lecturer in Agronomy in the grade of Rs.225-450 for teaching
degree classes in the aforesaid college. On 6.11.1963 he was appointed as Head
of the Department (Post Graduate College) in the grade of Rs.350-800. ON 1.1.86
he was designated as Senior Lecturer in the grade of Rs.3700-5700.
Dr.
S.P. Singh, common respondent No.3 was appointed on 9.7.59 as lecturer in the
same college for teaching post graduate classes in the subject of Economics in
the grade of Rs.250-500. On 6.11.63 he was designated as Head of the
Department, Post Graduate Classes in the grade of Rs.350- 800. On 1.1.1986 he
was granted the grade of senior lecturer i.e. Rs.3700-5700.
Dr. Rajvir
Singh, respondent No.5 in the first two appeals and appellant in the companion
appeal No.4616 of 1996 was appointed as post graduate lecturer in the aforesaid
college on 9.7.61 in the grade of Rs.250-500 in D.A.V. College, Muzaffarnagar
in the subject of Geology. On 25th August, 1964
he was appointed and designated as Head of the Department Post Graduate Classes
in the grade of Rs.350-800 in the college to which the other two contestants
belonged. It appears that his service tenure in the same college underwent
rough weather. Even though he was designated as Head of the Department on
9.7.66 in the grade of Rs.700-1100, subsequently his services were terminated
on 7.5.69 and said termination order was set aside on 31.1.73 and thereafter he
joined as lecturer in the same college in the grade of Rs.700-1600. On 1.1.1986
he was granted grade of Rs. 2200-4000. The said grade was that of a lecturer.
He was
designated as a senior lecturer in the grade of Rs.3700-5700 with effect from
31.1.1986.
The
aforesaid Bio-Data of the three contestants is well borne out from the record
of the case and has been treated by the High Court to be well established.
However, learned counsel for respondent No. 5 in these two appeals Dr. Rajvir
Singh vehemently contended that his client should be considered to have been
appointed as a senior lecturer in this very college not form 31.1.1986 but from
1.1.86, he should have made such a grievance at the relevant time.
Years
rolled by still he never made a grievance about the same and accepted the
decision that the was to be designated as senior lecturer only from 31.1.86.
Subsequently, therefore when vacancy of Principal arose in, 1993 when the then
Principal Dr. P.S. Malik, retired and when the question of appointed of an
Acting Principal arose it was too late Dr. Rajvir Singh to contend after seven
years that he should have been treated to be a senior lecturer form 1.1.86 and
not from 31.1.86. We must, therefore proceed on the basis that appellant Dr. Mahak
Singh and respondent No.3 were designated as senior lecturer from 1.1.86 while
respondent No.5 Dr. Rajvir Singh was rightly designated as the senior lecturer
from 31.1.86. In the background of this service bio-data of all the three
contestants, the short question which arises for our consideration has to be
resolved. The relevant stature for resolving this controversy is 13.20.
It is
not in dispute the parties that the said statute held the field when the
vacancy of the Principal of the college occurred on 30th June, 1993. The said stature reads as under:
13.20:-
When the office of the Principal of an affiliated college falls vacant, the
Management may appoint any teacher to officiate as Principal for a period of
three months or until the appointment of a regular Principal, whichever is
earlier. If on or before the expiry of the period of three months, any regular
Principal does not appointed, or such a Principal does not assume office, the
senior- most teacher in the college shall officiate as Principal of such
college until a regular Principal is appointed.
It is
not in dispute between the parties that the office of the Principal of college
to which all the three contestants belonged fell vacant form 1st July, 1993 and
on the expiry of three months form that date no regular Principal came to be
appointed. It is pertinent to note that even till date no regular Principal has
become available to take over the charge of the college as Principal. We are
told that the relevant recruiting agency for the said purpose has already
selected a candidate for the said post who is other than any of contestants
before us. But even his appointment is held up because of a pending litigation
in Allahabad High Court. Be that as it may a situation has emerged and has
continued to operate qua the college in question, wherein Statute 13.20 has
continued to operate all through out till date. It is, therefore, necessary to
find out as to who is the senior-most teacher in this co amongst the three
contestants who can legally officiate as Principal of the college which is an
affiliated college. Stature 11.34 in Part V of the statute with seniority of
teacher in affiliated colleges would become relevant for exercise, it reads as
under:
11.34:-
Subject to the provision of this Statute the seniority of teachers in a
particular college shall be determined by the length of service in that college
in the same cadre and by the same grade.
For
applicability of this statute it has to be found as to who was the senior-most
teacher in his college belonging to the same cadre and having the same grade
and having the same grade of pay when the vacancy of Principal arose on the
expiry of three months from 1st July, 1993 i.e. from 1st October .1993. It is sen
form the aforesaid service bio- data of all the three contestants that all of
than were working in the grade or senior lecturers and were drawing the same
emoluments in the grade of Rs.3700-5700 on 1.10.1993. Then the next question
arises as to who was the senior-most amongst them in cadre of senior lecturers
in this college. So far as contestant Dr. Rajvir Singh is concerned the answer
is obvious. He was designated as senior lecturer form 31.1.86 as compared to
the common appellant Dr, Mahak Singh and the common respondent No.3 Dr, S.P.
Singh. He naturally, therefore, gets weeded out by these two seniors of his in
the cadre of senior lecture as both of them were senior to him by atleast 30
days on the Principal of continues officiation as senior lecture . That removes
Dr. Rajvir Singh from the array of contest for the post of Acting Principal on
the combined operation of Statutes 13.20 and 11.34. However, strong reliance
was placed by learned counsel for Dr. Rajvir Singh on Statute 13.05 read with
statute 18.16 which read as under:
"18.05:-
The following rules shall be following in determining the seniority of teachers
of the University- (a) A Professor shall be deemed senior to every Reader, and
a Reader shall be deemed senior to every Lecturer.
18.16:-
The provisions of Statutes 18.01, 18.02 18.05 and 18.08 shall mutatis mutandis
apply to the teachers and Principals of affiliated colleges as they apply to
the teachers of the University." On the basis of three statutes it was
submitted on behalf of Dr. Rajvir Singh that even though the relevant statutes
round in Chapter XVIII with seniority of teacher of University atleast Statute
18.05 would mutatis mutandis apply to the teachers and principal of affiliated
college to which all the three contestants belonged. to that extent he is
right. However, the question is whether in the college to which the contents to
belonged where the of Principal occurred, was was there any reader who could
rank senior to a lecturer so that Statute 18.05 could be effectively pressed in
service by Dr. Rajvir Singh. The said question is to be answered in the
negative for the simple reason that on the date on which the vacancy of
Principal occurred, as aforesaid, Dr. Rajvir Singh had no longer remained a
reader but he was designated as a senior lecturer. IN part he might have been a
reader but it became a matter of history for him as though he was designated as
reader and Head of the Department on 9.7.66 with passage of two decades by 1986
he became a lecturer from 1.1.86 and became a senior lecturer only from
31.1.86. Consequently Statute 18.05 cannot be of any assistance to him. This
conclusion of ours will put Dr. Rajvir Singh, appellant in Civil Appeal No.4616
of 1996 out of contest and his appeal would be liable to fail.
Then
remain in the field of contest, the common appellant Dr. Mahak Singh and the
common respondent No.3 Dr. S.P. Singh whose claim has found favour with the
High Court.
So far
as this contest is concerned, it must at once be stated agreeing with Shri Prashant
Bhushan, learned counsel for the appellant, Dr. Mahak Singh that his client
became a lecturer form 9.7.59 on a regular vacancy while respondent No.3 who
was appointed as lecturer on 9.7.59 was admittedly unqualified to be appointed
as such on regular basis and he was granted relaxation of educational
qualifications only 15th April, 1960 by the Executive Council of the
University.
Therefore
he can be said to have become a regular lecturer only from that date. It is
well settled that if a person is appointed irregularly on a post and if he is regularised
later on his initial appointment would be treated as void and he wi be
considered to have been regularly appointed only from the fate of such regularisation
and would be treated as having entered in service form that date. In Shitla
Prasad Shukla v. State of U.P. and Ors. 1986
(Supp) SCC 185 in para 9 of the said Report and Bench of two judges of this
Court speaking through M.P. Thakkar. J. had made the following pertinent
observations in this connection:
"There
is also one more dimension of the matter. Though the appellant was working as a
lecturer, it was not under any authority of law for there is no provision which
empowers the college to allow any unqualified person to teach or to appoint him
as such in anticipation of his disqualification being removed in future. Till
the exemption was granted appellant was not even a teacher in the eye of law
though he was allowed to teach by the indulgence of the college auth.
The
disqualification was removed only on July 23 1963 when the Board granted the
exemption. How could he have claimed seniority via-a-vis respondents 5 and 6
who possessed the requisite qualification and became regularly and lawfully
appointed teacher such prior thereto? It must, therefore, be held that
respondent o. 3 became a regular lecturer in this college from 16.4.1960 and
Appellant Dr. Mahak Singh on the other hand was a regular lecturer in this
college from 9.7.59 and was, therefore, senior to him. However we are strictly
not concerned with the initial seniority of these two contestants. We have to
examine a situation that obtained when the vacancy of Principal arose i.e. on
1.10.1993. On that date the appellant as well as respondent No.3 were working
as senior lecturers in the same grade from the very same date i.e. from
1.1.1986. The question therefore arises as to who between them could be said to
be senior so as to be entitled to be considered for being appointed as Acting
Principal as per Statute 13.20 read within Statute 11.34 as both of them by
that time had equal length of continuous officiation as senior lecturers and
were in the same grade. In this connection two aspects assume Importance.
Firstly between the two who was senior in the light of the initial entry in the
college as lecturer and secondly who between the two would be entitled to be
considered for the post of Acting Principal which is a stop-gap arrangement awaiting
the duly selected Principal. So far as the first aspect is concerned as we have
seen above the appellant was definitely senior to respondent No.3 as a
lecturer. However the more important question to when the appellant are
respondent No.3 were equally placed in the grade of senior lecturers and were
officiating as such form the very same date, who between them would be entitled
to become the Acting Principal. For answering this question the general
bio-data of both of them apart from their service bio-data would assure
importance especially when we are examining the rival claims in appeals under
Article 136 of the Constitution. So far as this aspect is concerned for
respondent No.3 to the counter affidavit filed on behalf of respondent No.3 in
the special leave petitions from which these appeals arise. In paragraph 20 of
the said counter, it has been averred that the credentials of the writ
petitioner i.e.(present appellant) are themselves not impeccable and
unimpeachable.
The
petitioner (the appellant) has several criminal cases registered against him in
the town of Baraut itself, including the particulars
of which are annexed at Annexure- C. When we turn to Annexure-C we find the
following particular:
LIST
OF CRIMINAL CASES PENDING AGAINST SHRI MAHAK SINGH IN BARAUT
1. FIR
No. 167/82 under section 147/148/149/307/324 IPC
2. FIR
No. 185/82 under section 328 IPC
3. FIR
No. 282/87 under section 147/148/149/307/302 IPC
4. FIR
No. 191/88 under section 147/148/149/307/323/171 IPC
5. FIR
No. 196/88 under section 307/34 IPC.
6. Fir
No.. 299/80 UNDER SECTION 147/324/323/426 IPC.
Learned
counsel for the appellant joined issue on this aspect and incited our attention
to paragraph 8 of the rejoinder affidavit of the appellant at page 115 of the
paper book which reads as under:
"As
regards the respondent's attempt to show that the petitioner has several
criminal cases pending against him, this charge of the respondent is malicious
and misleading. It is pointed out that the petitioner has been involved in
public life and has been an M.L.A. to the Legislative Assembly in 1991. the
petitioner, therefore, has various political rivals who lodged false complaints
against the petitioner. Gut of the six FIRs mentioned, the petitioner is aware
of only the first five. Out of these FIRs at item 1,2,4 and 5, the charges
against the petitioner were found to he false and there is no proceedings
pending in respect of the same. At No.3 involves a false complaint against the
petitioner which was made eight years ago.
The
case is still pending for more than eight years though the charge against the
petitioner is totally baseless and the petitioner is accused of offence in the
village at a time when the petitioner was attending a sports function in the
college." It becomes, therefore, clear that from year 1980 onwards the
appellant was involved in so many criminal cases in connection with offences
under Indian Penal Code. All the alleged offences were against human body and
they ranged from alleged offences under Sections 324, 326 and 426 and extending
up to offences under Sections 307, 147, 148, 149 and even Section 302 I.P.C. We
may take it as submitted by the learned counsel for the appellant that out of
the listed six cases in Annexure-C to the counter affidavit of respondent No.3,
the appellant was discharged in all the cases expect one under Section 302
I.P.C. which is still pending since number of years. On our further enquiry we
were informed by learned counsel for the appellant as well as respondent No.3
that the criminal case regarding offence under Section 302 I.P.C. which is at
the stage of evidence before the Sessions Court, the appellant is accused of an
offence of double murder alleged to have been committed by inflicting gun shots
on the deceased. We are not concerned with the merits of the said controversy
as learned counsel for the appellant contended that it is totally a false case
foisted upon the appellant by his political rivals as he was an active
political worker who subsequently became a Member of Legislative Assembly. Be
that as it may when the question arises as to who should be the Acting
Principal of the Degree College wherein apart form administrative duties, the
Principal being the head of the institution has to act as a model for the
students, and especially when both the appellant and respondent No.3 are
equally placed and situated as senior lecturers drawing the same pay scale and
officiating from the very same day, equity would tilt the balance against the
appellant as admittedly he is at present facing a charge of double murder under
Section 302 I.P.C.
When
such is the bio-data of the appellant atleast he can be said to be under a
cloud of a serious criminal charge.
Consequently
even assuming that both the appellant and respondent No.3 are otherwise equally
situated form the point of view of seniority as senior lecturers and that the
initial entry as a lecturer makes the appellant senior to respondent No.3, even
then in our view while exercising jurisdiction in appeal under Article 136, we
would be loath to give any relief to the appellant so as to entitle him to work
as Acting Principal of the Degree College when he is facing the charge of
double murder. We obviously cannot and do not express any opinion on his
culpability but atleast this involvement and cloud affect his credentials for
being considered as a suitable candidate for the post of acting Principal of
the college wherein students have to be taught discipline and are to be
equipped with knowledge, expertise and higher values of life so as to make them
better citizens. For acting as the head of the institution, therefore, in the
light of the aforesaid peculiar facts of the situation, in our view the
appellant would not be entitled to get the balance titled in his favour even
assuming that he was senior to respondent No.3 initially as a lecturer. We also
make it clear that this assessment is also confined to the limited question as
to who would be considered senior for the purpose of being appointed as Acting
Principal under statute 13.20. Once the High Court has taken the view that
between the appellant and respondent No.3, respondent No.3 is entitled to be
appointed as Acting Principal under the said statute, and once we find that the
appellant is not entitled to relief at our hands in view of the peculiar facts
and circumstances in which he is placed as indicated hereinabove, no case is
made out by the appellant for our interference under Article 138 of the
Constitution of India in the present proceedings.
As a
result of the aforesaid discussion Civil Appeals No.4613-4614 of 1996 filled by
the appellant Dr. Mahak Singh fail and will stand dismissed. Similarly Civil
Appeal No.4616 of 1996 filled by Dr. Rajvir Singh will also stand dismissed. In
the facts and circumstances of the case, there shall be no order as to costs in
all these appeals.
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