S.K. Kushwaha & Kurukshetra University & Anr Vs. D.K. Joshi & Ors [2002] Insc 143 (18 March 2002)
S.N.
Phukan & P. Venkatarama Reddi P.Venkatarama Reddi, J.
Appeal (civil) 6047 of 2000
The
appellant in C.A.No. 6048/2000 who was working as a lecturer in Art and Crafts
in the University College of Education, Kurukshetra, for considerable time
applied for the post of Principal pursuant to the advertisement No. 10 of 1995
issued by Kurukshetra University. It appears that this advertisement is the
fourth in the series since 1990. No candidate was selected on the earlier
occasions. The appellant and the 1st respondent in the said appeal who was
lecturer in English in the same College, were called for the interview. The
Establishment Committee which interviewed candidates, recommended the
appointment of the appellant. The recommendation was accepted by the Executive
Council on 10.1.1997 and the appellant was appointed as Principal in January
1997. About one year later, the 1st respondent in CA No. 6048 of 2000 filed
C.W.P. No. 351/98 questioning the selection and appointment of the appellant on
the ground of not having the requisite qualification for the post of Principal
and sought for direction not to confirm him in that post. This was preceded by
a representation filed a few days earlier by the 1st respondent to the
University.
The
said Writ Petition was disposed of by Punjab & Haryana High Court on
12.1.1998 directing the representation of the 1st respondent to be considered
by passing a speaking order before confirming the appellant. By a communication
dated 03.09.1998 addressed to the 1st respondent herein, the University
communicated the factum of rejection of the represention and the grounds of
rejection. The last para of the letter dated 03.09.1998 reads as follows:
"Dr.
Kushwaha was M.A. in first Division. No doubt he did not possess the
qualification of M.Ed. but in view of the resolution of the Executive Council
this qualification was relaxable and accordingly he was considered and selected
by the Establishment Committee by relaxing the qualification of M.Ed.
Therefore, the plea of Dr. Joshi that he did not possess the qualification laid
down in the advertisement is wrong as his case was covered under relaxation
clause as passed by the Executive Council in its meeting held on 22.9.1993.
Therefore, the representation of Dr. Joshi has no merits and be rejected."
Thereafter another Writ Petition-CWP No. 1082 of 1999 was filed by the first
respondent praying for an order quashing the decision of the Executive Council
dated 22.9.1993 by which relaxation of qualification of M.Ed./B.Ed. was granted
to the appellant and for quashing the communication dated 3.9.1998 by which his
representation was rejected. A further direction was sought for to re-advertise
the post of principal by quashing the appointment of the appellant. The
judgment rendered in this CWP has given rise to these appeals filed by the
appointee - Dr. Kushwaha and the University.
The
High Court held that the appellant herein did not possess the essential
qualification of M.Ed or B.Ed in terms of the advertisement and it was not open
to the Executive Council to relax that qualification as it had no such power.
Adverting to the resolution of the Executive Council dated 22.9.1993, the High
Court commented that the said Resolution had no relevance to the advertisement
issued in the year 1995. The High Court, therefore, set aside the selection and
appointment of the 3rd Respondent as Principal and directed a fresh
advertisement to fill up the post in accordance with law. The appellant was
directed to vacate the post forthwith. However, he has been continuing in
office till date in view of the interim order passed by this Court and the
consequential decision taken by the University.
We have,
therefore, to consider the crucial question whether B.Ed or M.Ed.
qualification, as the case may be, is an essential and indispensable
requirement for selection to the post of Principal of University College of
Education.
The
qualifications for the posts of Lecturers and Principals in the recognized
Colleges of Education are prescribed by Ordinance XVI. The following are the
qualifications prescribed for the post of Principal :- Principal :
(a) A
Doctor's Degree.
(b) A
consistently good academic record with high Second Class (55% marks or grade B
in even point scale) M.A. Education with B.Ed (Second Class with 50% marks in
Theory and Practice separately) or Master's Degree in any subject with M.Ed
(55% marks in one degree and 50% marks in the other).
(c)
Teaching experience of at least 8 years in a recognized College or University
out of which teaching experience of at least five years should be in recognized
College of Education or the Department of Education of a University. Persons
with some administrative experience in an educational Institution will be
preferred.
Provided
that the teaching experience in the case of lady Principals of Women Colleges
of Education may be reduced upto five years by the Vice-Chancellor on the basis
of merit taking into consideration the age, academic record and experience.
Note :
(i)
The condition of Ph.D. Degree shall not apply to those having 16 years of
teaching experience in the capacity as a regular lecturer in a College.
(ii)
The following qualifications are applicable in the case of University appointed
lecturer or a university approved lecturer of a Recognised college appointed
before 27.1.1976.
(emphasis
supplied) Principal –
(a) A
consistently good academic record with High Second Class (55% marks or grade B
in seven point scale) M.A. Education with B.Ed. (Second Class with 50% marks in
Theory and Practice separately) or Master's degree in any subject with M.Ed.
(55% marks in one degree and 50% marks in the other). (Relaxable in the case of
a University appointed lecturer or a University approved lecturer in any
capacity, of a recognized College appointed before 27.1.1976); and
(b) An
M.Phil Degree or a recognized degree beyond the Master's level or published
work indicating the capacity of a candidate for independent research work.
(c) Provided
that if a candidate possessing the qualification as at (b) is not available or
not considered suitable, the College on the recommendation of the Selection
Committee may appoint a person possessing the qualifications as at (a).
(d)
Teaching experience of at least 10 years in a recognized or affiliated college
or University out of which teaching experience of at least 5 years should be in
recognised college of Education or the Department of Education of a University. Persons
with some administrative experience in an educational institution will be
preferred.
Provided
that the teaching experience in the case of lady Principals of Women Colleges
of Education may be reduced up to five years by the Vice-Chancellor on the
basis of merit taking into consideration the age, academic record and
experience." In the advertisement, it is stated that the qualifications
are mentioned in the application form. A copy of the application form is not on
record. However, an extract of the qualifications for the post of Principal,
University College of Education is found in the paper book. In that, the word
'and' occurring at sub-clause (a) of Note II (extracted above) is found
omitted. The same mistake is repeated in the extract of qualifications given by
the High Court. The qualifications set out in the advertisement coupled with
the application form are supposed to be in conformity with the relevant rules
and ordinances. A copy of the Ordinance No. XVI (corrected upto 1994) has been
filed by the learned counsel for the 1st respondent-writ petitioner at the time
of hearing. We must presume that the qualifications mentioned in the
application form are in conformity with the Ordinance. Therefore, we proceed on
the basis that at the end of sub-clause (a) following Note II, the expression
'and' occurs. We have pointed out this glaring omission as the word 'and' has
some bearing on the interpretation sought to be placed by the learned counsel
for the appellant.
It may
be seen that two categories of eligible candidates are dealt with in the
Ordinance. The second part prescribes the qualifications for such of those
lecturers who were either appointed by the University or whose appointments in
a recognized College were approved by the University before 27.1.1976. The
first part applies to the candidates who do not come within the ambit of second
part (i.e. Note II of the Ordinance). We are concerned here with second part
underlined above.
Now,
let us see the educational qualifications of the first respondent.
They
are: M.A. in 1st Division with the subjects of drawing and painting, Ph.D (in
Fine Arts subject) and 5 year diploma in Commercial Arts.
Admittedly,
he does not possess the qualification of M.A. (Education) with B.Ed or Masters
Degree with M.Ed. as required under sub-clause (a). Of course, he had teaching
experience of 26 years as lecturer.
The
learned senior counsel for the appellant, Shri G.L. Sanghi, has put forward, in
the first instance, a new contention harping on sub-clause (c) which, for the
sake of ready reference, is repeated hereunder:
"(c)-Provided
that if a candidate possessing the qualification as at (b) is not available or
not considered suitable, the College on the recommendation of the Selection
Committee may appoint a person possessing the qualifications as at (a)."
According to Shri G.L. Sanghi, sub-clause (c) lays down a rule of preference
and if a candidate with M.Phil or Ph.D is available, it enjoins that such a
candidate should necessarily be appointed. As the appellant possesses Ph.D.
Degree which is a recognized Degree beyond the Masters' level within the
meaning of sub-clause (b) and he fulfils the teaching experience criteria, he
is eligible for appointment irrespective of the fact that he does not have one
of the qualifications set out in sub-clause (a). The learned counsel wants to
read sub-clauses (a) and (b) as alternative qualifications and the
qualification in (b) prevailing over those in (a). Such argument, in our view,
ignores the conjunctive expression 'and'. There is no compelling reason to read
the word 'and' as 'or'. In our view, the reasonable and harmonious way of
construing sub-clause (c) is this : in order to get eligibility for selection
to the post of Principal, one of the two academic qualifications set out in (a)
i.e. M.A. (Education) with B.Ed. or Masters Degree in any subject with M.Ed. is
necessary. In addition thereto, the qualification in (b) should also be
fulfilled in the normal course. That is to say, a candidate in addition to the
academic qualification in sub-clause (a) should have M.Phil Degree or a
recognized Degree beyond the Masters' level or published a research-level work.
However, in case such a candidate having both the qualifications is not
available or is otherwise found unsuitable, the option is left to select a
candidate fulfilling the qualifications laid down in (a) only. That, in our
view, is the plain meaning of sub- clause (c) and we agree with the submission
made by Mr.R.Dwivedi, the learned Senior counsel for Respondent No.1 in this
regard.
We
cannot, therefore, read Clause (c) as laying down any rule of preference in favour
of a candidate having M. Phil or Ph.D qualification, but it is only a provision
enabling the appointment of a candidate without the qualification specified in
(b) i.e. M. Phil or a Master's level degree beyond that which may include Ph.D.
In fact, the interpretation which is sought to be placed on behalf of the
appellant was never placed by the University. On the other hand, the University
was only harping on the purported power of relaxation. It was only for the
first time in the course of the arguments, the learned counsel for the
University made an endeavour to support this argument advanced by the learned
Counsel for the appellant.
We
shall now turn our attention to the next contention regarding relaxation of
qualification which loomed large before the High Court. The stand of the
appellant and the University is that the academic qualification prescribed as
well as minimum marks in Masters' Degree could be relaxed in appropriate cases,
whereas the stand of the first respondent is that relaxation is contemplated in
relation to percentage of marks only. The provision for relaxation is contained
in the bracketed portion immediately following sub-clause (a) to Note II of the
Ordinance quoted supra. The same provision is also found in Advertisement No.2
of 1990 which is the first in the series. Two questions arise here :
(1)
Whether the power to relax educational qualification is vested with the
competent body/authority?
(2)
Factually, was there relaxation?
If so,
by a competent body or Authority? The answer to first question turns on the
ambit and amplitude of relaxation clause. It seems to us that the
interpretation placed by the University body in its resolution dated 22.9.1993
is a reasonably possible view, going by the plain language and the contextual
setting of relaxation provision. Such provision for relaxation could have been
thought of to open up opportunities to the lecturers of long standing and
creditable record who may be deficient in one of the prescribed qualifications,
whatever may be the wisdom behind it. For instance, a candidate under
consideration has at least B.Ed. qualification. There is no serious dispute
that the requirement of M.Ed. degree could be relaxed. The wide scope of the
relaxation provision was recognized by the University authorities even in the
year 1990 and that is why the proposal was placed before the Executive Council
to curtail its scope so as to limit the relaxation to marks only. The Executive
Council approved the same on 23.11.1990 and decided to amend the Ordinance. We
have not been enlightened as to what further happened. No one has pleaded that
the relaxation clause was amended as per the resolution. In the Ordinance which
we extracted above, the same provision in widely couched language exists. One
point we would like to make clear is that we are not concerned here with the
propriety of reserving the power to relax the basic educational qualification
in a given case because such provision has not been attacked as ultra vires the
Constitution or Statute. We need not, therefore, test it from the angle of
Articles 14 and 16. We are concerned here with the limited aspect of existence
or otherwise of the power to relax qualifications, on the basis of the relaxation
clause, as it stands.
Coming
to the second question, the first document to be referred to is Annexure R-5 to
the counter of 1st respondent which is a Note circulated to the Executive
Council which met on 31.7.1998 to take a decision on agenda item No.62 pursuant
to the direction given in C.W.P. No. 351/98. Therein it is mentioned that the
appellant was called for interview on the orders of Vice-Chancellor issued on
15.12.1995 keeping in view the decision of the Executive Council recorded in
resolution No.28 dated 22.9.1993. The said resolution dated 22.9.1993 reads as
follows :- "The Executive Council considered the representation of Shri
S.K. Kushwaha, lecturer in Arts and Craft, University College of Education, and
resolved that he is eligible to appear before the selection committee in terms
of the advertisement as published in February 1990. He is an approved lecturer
of the recognised college. The term relaxation as used in this advertisement is
not restricted to percentage of marks only as interpreted by the then executive
Council in its resolution No.82 dated 23.11.90, but has an extended meaning
covering entire essential qualifications as listed in Clause (a) of this
advertisement".
The
High Court was of the view that this resolution has no relevance to the
advertisement No.10 of 1995. That, in our view, amounts to taking a narrow view
of the scope of the resolution. Though the resolution refers to the 'terms' and
'qualifications' stipulated in the advertisement of February 1990, it holds
good for the selections held subsequent to that date also so long as the
conditions of eligibility and qualifications prescribed are the same. A xerox
copy of the advertisement No.2 of 1990 has been filed by the counsel for the
University. The fact that the qualifications in the advertisement of 1990 and
the present advertisement of 1995 are the same admits of no doubt. It is
specifically mentioned so in the note placed before the Executive Council for
its meeting held on 31.7.1998. In this fact situation, if the power of
relaxation was exercised once, the benefit of such relaxation will enure to the
appellant in relation to the subsequent advertisement also for the reason that
the qualifications did not change and secondly the selection did not materialise
for one reason or the other. However, going by the language of the resolution,
a doubt arises whether the Executive Council, which is undisputedly the
competent authority, had in fact relaxed the M.Ed. qualification in the case of
the appellant. The resolution dated 22.9.1993 merely sets out the wider scope
of the relaxation clause. It does not say anything more than that. The
statement in the resolution that the appellant is eligible to appear before the
selection committee does not necessarily imply that the power of relaxation of
educational qualification was in fact exercised. The relevant record only could
bear testimony to that fact. There is another allied aspect. Even if factum of
relaxation before or at the time of passing the resolution dated 22.9.1993 is
not established, it would still be necessary to enquire whether the relaxation
was given by competent authority in December 1995 when the appellant was called
for interview on the orders of the Vice-Chancellor. In this connection, what is
stated in the concluding para of the communication dated 3.9.1998 addressed to
the first respondent deserves notice. It is said therein : "in view of the
resolution of the Executive Council this qualification was relaxable and
accordingly he was considered and selected by the Establishment Committee by
relaxing the qualification of M.Ed". Prima facie it indicates that the
Establishment Committee relaxed the qualification. But, the Establishment
Committee which was incharge of selection cannot usurp the power of relaxation which
is vested in the Executive Council. Therefore, it has to be seen with reference
to the record whether there was relaxation in December 1995 before the
appellant was called for interview and if so, such relaxation was given by the
Executive Council, after applying its mind to the factors justifying
relaxation. It is made clear that in case there was due relaxation in September
1993 by the Executive Council, it is unnecessary to probe into question of
relaxation in December 1995.
To summarise,
we hold that the appellant cannot take refuge under sub-clause (c). He lacks
one of the qualifications prescribed in sub-clause (a), namely, M.Ed. At the
same time, we have held that the Executive Council was empowered to relax the
educational qualification but not merely the requirement as to minimum
percentage of marks. We have expressed a doubt on the question whether the
power of relaxation was in fact exercised in favour of the appellant by the
competent authority either during 1993 or 1995, after applying its mind to the
factors warranting relaxation. That fact has to be verified with reference to
records and additional pleadings if any. The validity or otherwise of the
Ordinance conferring power to relax one of the educational qualifications is
left open.
Finally,
we must advert to the contention raised by the learned counsel for the
appellant that the delay on the part of the first respondent and his conduct
disentitled him for relief under Article 226 of the Constitution and the High
Court at the instance of the first respondent should not have gone to the
extent of setting aside the appointment made long back. It is pointed out that
the first respondent filed the writ petition nearly one year after the
appointment of the appellant though he was well aware of such appointment. It
is submitted that even though the first respondent was on study leave for some
time he was regularly visiting the University campus and therefore he must have
been aware of developments. Moreover, it is contented that the first respondent
being fully aware of the decision of the University relaxing the qualifications
as early as in 1993 did not challenge that resolution all these years. On the
other hand, having participated in the selection process and failed to get
selected, he started the present litigation. The learned senior counsel for the
first respondent, Shri R. Dwivedi, countered this contention mainly on the
ground that this objection was not raised before the High Court and, therefore,
the High Court did not have occasion to consider the same.
Learned
counsel submits that it is not open to the appellant to raise this issue of
delay and latches at this point of time. We find from the pleadings that the
appellant did raise the question of delay and latches on the part of the first
respondent. As the case is being remitted to the High Court for consideration
of the points set out above, we feel, it will be appropriate for the High Court
to consider this aspect as well. Whether or not there was unexplained delay
and, if so, whether it will have effect on the ultimate order that the High
Court is inclined to pass will have to be considered by the High Court. We do
not propose to express any view on this aspect. It is needless to point out
that in case the finding of the High Court on the issue relating to relaxation
is in favour of the appellant, no further question arises.
For
the reasons aforesaid, we set aside the judgment of the High Court and remit
the matter to the High Court for fresh consideration in the light of the
declaration of law and the observations made in the judgment, as expeditiously
as possible. The appeal is thus allowed. No costs.
.J.
(S.N. Phukan)
..J.
(P.Venkatarama
Reddi) March 18, 2002.
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