Bholanath Mukherjee
& Ors. Vs. R.K. Mission V. Centenary College & Ors.
J U D G M E N T
SURINDER SINGH
NIJJAR, J.
1.
This
appeal is directed against the final judgment and order of the Calcutta High Court
dated 21st September, 2004 in M.A.T. No. 476 of 2004 arising out of Writ Petition
No. 29805(W) of 1997 vide which the order of the learned Single Judge of the
High Court was set aside.
2.
We
may notice the essential facts, which would have a bearing on the determination
of the issues raised in this appeal. Admittedly, there has been a controversy with
regard to the special status enjoyed by the Ramakrishna Mission Vivekananda Centenary
College at Rahara (hereinafter referred to as `respondent No.1') for a long period
of time. The College was initially established in the year 1961 with a grant of
Rs.2 lakhs given by the Government of West Bengal in the Education Department. The
additional cost for establishing the College had been borne by the State Government.
Subsequently on 25th April, 2002, the Government of West Bengal, in order to advance
collegiate education and with a view to reduce the overcrowding in good
colleges in Calcutta decided to set up a three year degree college at Rahara. Such
college was to be set up on the recommendations of the University Grants Commission
(for short `UGC'). The college was duly established and granted affiliation to
Calcutta University on 13th May, 1963. It is a fully aided college; being sponsored
and financed by the State Government.
3.
The
controversy herein relates to the appointment of the Principal of the College. The
post of Principal is included in the definition of Teacher, as contained in
Section 2 Clause 9 of the aforesaid Act. The aforesaid Clause defines the term
Teacher to include a Professor, Assistant Professor, Lecturer, Tutor, Demonstrator,
Physical Instructor or any other person holding a teaching post of a college
recognised by the University to which such college is affiliated and appointed as
such by such college and includes its Principal and Vice-Principal. Section 3
of the Act provides "appointment to the post of a Teacher shall be made by
the Governing Body on the recommendations of the University and College Service
Commission to be constituted by the State Government in the manner prescribed".
The appointment on the
post of Teachers of a college is governed by the College Service Commission established
under the West Bengal College Service Commission Act, 1978. Section 3 of the aforesaid
Act is as under:- "(1) The State Government shall, with effect from such date
as may by notification, appoint, constitute Commission by the name of the West
Bengal College Service Commission consisting of five members of whom one shall be
the Chairman. (2) Of the members one shall be person who, not being an educationist,
occupies or has occupied in the opinion of the State Government, a position of eminence
in public life or in Judicial or administrative service and the other shall
have teaching experience either as a Professor of a University or as a Principal
for a period of not less than ten years or as a teacher, other than Principal
of a College, for a period of not less than fifteen years." Section 7(1)
and Proviso (ii) are as under:- "
Notwithstanding anything
contained in any other law for the time being in force or in any contract, custom
or usage to the contrary, it shall be the duty of the Commission to select persons
for appointment to the post of Teachers of a College: Provided that- (i).. (ii)
For selection of a person for appointment to the post of Principal, the
Commission shall be aided by the vice-Chancellor of the University to which
such college is affiliated or his nominee and a nominee of the Chancellor of
such University."
4.
Section
15 provides that "nothing contained in the Act shall apply in relation to any
college not receiving any aid from the State Government or any college established
and administered by a minority, whether based on religion or language." The
State Government issued Memo No. 752-Edn (CS) to revise the existing pattern for
the composition of the governing bodies of the Government sponsored colleges excepting
in cases where the college has a special constitution on the basis of Trust Deeds
or where the colleges are run by Missionary Societies on the basis of agreement
with the respective missions. The academic qualification prescribed for appointment
on the post of Principal by the Government of West Bengal vide a G.O. No. 149-Edn(CP)
dated 22nd February, 1994.
5.
It
appears that earlier the controversy with regard to the appointment on the post
of Principal was subject matter of the decision rendered by this Court in the case
of Bramchari Sidheswar Shai & Ors. Vs. State of W.B. & Ors.. In
deciding the controversy raised in the aforesaid case, this Court has extensively
traced the history with regard to the setting up of three year degree colleges under
the auspicious of Ramakrishna Mission Boy's Home at Rahara. Therefore, it is not
necessary for us to recapitulate the entire sequence of events in the present proceedings.
6.
Suffice
it to say that the aforesaid controversy had arisen in the context of a
challenge made in Writ Petition being C.O.No. 12837(W) of 1 (1995) 4 SCC 646 1980
to the appointment of Swami Shivamayananda, who was till then Head of Ramakrishna
Mission, Vidya Mandir, Bellur Math, as the Principal of Ramakrishna Mission
College. The petitioners had claimed that Shivamayananda did not have the requisite
qualifications for being appointed as the Principal and that he had not been appointed
by a duly constituted Governing Body. The prayers in the writ petition were for
the issue of (i) a writ in the nature of mandamus commanding the Government of West
Bengal to reconstitute the Governing Body of the Ramakrishna Mission College according
to standard pattern for Governing Bodies of sponsored colleges as per Government
Memo No. 752-Edn (CS)/C. S. 30-3/77 dated 18th April, 1978; (ii) a writ declaring
that the Ramakrishna Mission College is governed by West Bengal Act of 1975 and
West Bengal Act of 1978; (iii) a writ in the nature of quo warranto restraining
Swami Shivamayananda as Principal of Ramakrishna Mission College and other incidental
writs.
7.
During
the pendency of this writ petition, the University of Calcutta issued three
notices to the Ramakrishna Mission to reconstitute the Governing Bodies of the Ramakrishna
Mission Residential College, Narendrapur, Ramakrishna Mission Shiksha Mandir, Howrah
and Ramakrishna Mission Vidya Mandir, Howrah. The legality of these notices was
challenged by the Ramakrishna Mission by filing an Interlocutory Application in
the writ petition.
The writ petition was
resisted by the Ramakrishna Mission on the ground that being a minority based on
religion, the institutions established by it would be protected under Article 30(1)
of the Constitution. Therefore, the West Bengal Act of 1975 and West Bengal Act
of 1978 would not be applicable. The Ramakrishna Mission had also claimed its right
to establish and maintain institutions for religious and charitable purposes and
to manage its own religious affairs; to own and acquire movable and immoveable property;
and to administer such property in accordance with the law. The aforesaid rights
were claimed under Article 26 of the Constitution of India. The writ petition was
dismissed by the learned Single Judge.
It was held that institutions
established by Ramakrishna Mission were protected under Article 30(1) of the
Constitution of India. It was also held that the West Bengal Act of 1975 and
West Bengal Act of 1978 would not be applicable. It quashed the three notices issued
by the Calcutta University. It, however, rejected the claim of Ramakrishna Mission
under Article 26(a) of the Constitution of India. The aforesaid judgment was carried
in appeal before the Division Bench by the writ petitioners as well as the State
of West Bengal and Calcutta University. The Division Bench heard all the
appeals together, and by a common judgment dismissed all the appeals.
The Division Bench upheld
the conclusion of the learned Single Judge that Ramakrishna Mission being a
minority based on religion was protected under Article 30(1) of the Constitution
of India. It further held that the Ramakrishna Mission had the right to establish
educational institutions as religious denomination under Article 26(a) of the
Constitution of India. It further held that both the West Bengal Act of 1975 and
West Bengal Act of 1978 would not be applicable as these enactments did not contain
any express provision indicating their application to educational institutions established
and maintained by the Ramakrishna Mission. It further observed that to hold otherwise
would lead to infringement of the rights enjoyed by the Ramakrishna Mission
under Article 26(a) and 26(b) of the Constitution.
However, it left open
the question of legality or otherwise of the direction contained in the notices
issued by the Calcutta University to the Ramakrishna Mission for reconstitution
of Governing Bodies of the Ramakrishna Mission Residential College, Narendrapur,
Ramakrishna Mission Shiksha Mandir, Howrah and Ramakrishna Mission Vidya Mandir,
Howrah.
8.
The
aforesaid judgment of the Division Bench was challenged before this Court in a
number of appeals, which has been noticed above. These appeals were decided by
this Court by a common judgment dated 2nd July, 1995 in the case of Bramchari Sidheswar
Shai (supra).
9.
This
Court formulated six points arising for consideration in the appeals, which were
as follows:-
a. "Can the citizens
of India residing in the State of West Bengal who are professing, practising or
propagating the religious doctrines and teachings of Ramakrishna and have
become his followers, claim to belong to a minority based on Ramakrishna
religion which was distinct and different from Hindu religion and as such
entitled to the fundamental right under Article 30(1) of the Constitution of
India, of establishing and administering educational institutions of their choice
through Ramakrishna Mission or its branches in that State ?
b. Do persons belonging
to or owing allegiance to Ramakrishna Mission belong to a religious
denomination or any section thereof as would entitle them to claim the fundamental
rights conferred on either of them under Article 26 of the Constitution of
India?
c. If persons belonging to
or owing allegiance to Ramakrishna Mission is a religious denomination or a section
thereof, have they the fundamental right of establishing and maintaining institutions
for a charitable purpose under Article 26(a) of the Constitution of India?
d. If Ramakrishna Mission
as a religious denomination or a section thereof establishes and maintains educational
institutions, can such institutions be regarded as institutions established and
maintained for charitable purpose within the meaning of Article 26(a) of the
Constitution of India ?
e. Is Ramakrishna Mission
College at Rahara established and maintained by Ramakrishna Mission and if so, will
the constitution of its governing body by the Government of West Bengal amount to
infringement of Ramakrishna Mission's fundamental right to establish and maintain
an educational institution under Article 26(a) of the Constitution of India?
f. Can the court direct the
West Bengal Government because of W.B. Act 1975 and W.B. Act 1978, to
constitute governing body on a "standard pattern" of sponsored college
envisaged under its Memo dated 18-4-1978 in respect of Ramakrishna Mission College
when that memo itself says that colleges established and maintained by Missions
on the basis of agreements cannot be treated as sponsored colleges for the purpose
of constituting governing bodies for them on a "standard pattern"?"
10.
Upon
consideration of the entire matter, the conclusions recorded were as under :- Point
1
i.
For
the foregoing reasons, we hold that the citizens of India residing in the State
of West Bengal, who are professing, practising or propagating the religious doctrines
and teachings of Ramakrishna and have become his followers, cannot claim to belong
to a minority based on Ramakrishna religion which was distinct and different from
Hindu religion and as such are not entitled to the fundamental right under Article
30(1) of the Constitution of India, of establishing and administering educational
institutions of their choice through Ramakrishna Mission or its branches in
that State and answer Point 1 accordingly, in the negative. Point 2
ii.
For
the said reasons, we hold that persons belonging to or owing their allegiance to
Ramakrishna Mission or Ramakrishna Math belong to a religious denomination within
Hindu religion or a section thereof as would entitle them to claim the fundamental
rights conferred on either of them under Article 26 of the Constitution of
India and answer Point 2, accordingly, in the affirmative. Point 3
iii.
Since
we have held while dealing with Point 2 which arose for our consideration that the
persons belonging to or owing allegiance to Ramakrishna Mission or Ramakrishna Math
as followers of Ramakrishna, form a religious denomination in Hindu religion, as
a necessary concomitant thereof, we have to hold that they have a fundamental right
of establishing and maintaining institutions for a charitable purpose under Article
26(a) of the Constitution of India, subject, of course, to public order, morality
and health envisaged in that very article. Point 3 is, accordingly answered, in
the affirmative.
iv.
On
Point Nos. 4 & 5, it was observed as follows:- "We think that the
learned Judges of the High Court should not have decided on the general
question whether educational institutions established and maintained by
religious denomination including those established and maintained by Ramakrishna
Mission for general education get the protection of Article 26(a) of the Constitution
when that question in a general form, was not really at issue before them.
Therefore, the views expressed on the question shall, according to us, ought to
be treated as non est and the question is left open to be decided in proper case,
where such question really arises and all the parties who might be concerned with
it are afforded adequate opportunity to have their say in the matter."(v) On
Point No. 6, it was observed as follows:-
"67. As stated above,
the State Government has excepted the Ramakrishna Mission College at Rahra in the
matter of constituting a Governing Body on a standard pattern for the obvious reason
that constituting such a governing body for a college like Ramakrishna Mission College
which was all through allowed to have a governing body constituted by Ramakrishna
Mission, which had built the College on its land conceding to the request made
in that behalf by the State Government itself on the initiation of the Central Government,
may not be just.
Thus when Ramakrishna
Mission College had come to be built, established and managed by the Ramakrishna
Mission, it is difficult for us to think that the learned Judges of the Division
Bench of the High Court were not right in holding that the Government should not
be directed by issue of a mandamus, to constitute a governing body for the Ramakrishna
Mission College on a standard pattern taking recourse to the W.B. Act of 1975
and the W.B. Act of 1978, although for its own reasons. Therefore, in the peculiar
facts and circumstances in which Ramakrishna Mission College at Rahra was established
on Ramakrishna Mission's land and allowed to be administered by the Ramakrishna
Mission through its own governing body, we feel that interests of justice may
suffer by directing the State Government to constitute its own governing body on
a standard pattern of the usual sponsored colleges, as prayed for by the writ
petitioners.
However, the view we have
expressed in the matter shall not come in the way of the State Government to
change their earlier arrangement with the Ramakrishna Mission in the matter of
governance of the Ramakrishna Mission College, if on objective considerations
such change becomes necessary in the larger interests of students, teachers and
other employees of that College and is so permitted by law.68. In the said view
we have taken in the matter of constituting a Governing Body by the Government of
West Bengal in respect of the Ramakrishna Mission College at Rahra, there is no
need to go into the question that there has been infringement by the Government
of Ramakrishna Mission's fundamental rights to establish and maintain
educational institutions under Article 26(a) of the Constitution of India
inasmuch as such a question does not arise, in view of the answer already given
by us on Point 3 above. So also, question of directing the West Bengal
Government because of the W.B. Act of 1975 and the W.B. Act of 1978, to
constitute governing body on "standard pattern" of sponsored college envisaged
under its Memo dated 18-4-1978 in respect of Ramakrishna Mission College,
cannot arise. 69. Points 4 to 6 are accordingly answered."
11.
After
the decision in the aforesaid case, again Writ Petition No.29805(W) of 1997 was
filed in the Calcutta High Court challenging initially the appointment of Swami
Shivamayananda (Respondent No.16 herein) and Swami Divyananda (respondent No.17
herein) as Principal and Honorary Vice-Principal respectively. It was alleged that
appointment of both the respondents had been made without following the provisions
of the West Bengal Act of 1975 and West Bengal Act of 1978. However, both the persons
during the pendency of the writ petition before the High Court went on open ended
leave from their respective posts. Thereafter on 14th May, 1999, by an Office Order
No.RKMVCC/21/99, the college authorities elevated Swami Sukadevananda (respondent
No. 3 herein) Vice-Principal of the college to the post of Acting Principal with
immediate effect, again without following the West Bengal Act of 1975 and West Bengal
Act of 1978. He was designated as the Principal of the College on 20th March, 2001
vide Office Order No.3/RKMVCC/21/2001. The appointment of Swami Sukhadevananda,
as Principal of the College led to the amendment of the writ petition incorporating
a challenge to his appointment.
12.
It
is the case of the appellants, that the respondent No. 3 was only First class M.Sc.
in Biochemistry from Karnataka University and had worked as Scientific Officer in
Bhabha Atomic Research Centre, Bombay for about four years. As far as teaching experience
in the college is concerned, he had only six years of such experience. Thus, according
to the appellants, he did not possess the requisite qualifications for the post
of Principal as laid down in the above mentioned Government order dated 22nd
February, 1994. The learned Single Judge by his judgment dated 29th September,
2003 allowed the writ petition and it was observed as under; "Therefore, I
hold that as regard management, administration and maintenance of this Institution
the State government at present has denuded itself its authority or right to interfere
with. But the provisions of the Acts namely West Bengal College Teachers
(Security of Service) Act, 1975, West Bengal College Service Commission Act, 1978
and the Calcutta University First Statute, 1979 will have application unless these
laws by themselves exempt these organizations from being applicable. I do not find
any such exception."
The appointment of the
Principal was declared not to have been made under the provisions of the West
Bengal Act of 1975, West Bengal Act of 1978 and the Calcutta University First
Statute, 1979. A direction was issued to the Governing Body of the College to
take steps to fill the post either temporarily or permanently in accordance
with laws in force. Aggrieved, the Ramakrishna Mission College went in appeal before
the Division Bench. In order to consider the entire matter, the Division Bench analyzed
the judgment of this Court in Bramchari Sidheswar Shai's case (supra) extensively.
It noticed the conclusions recorded by this Court as extracted by us above. The
Division Bench concluded as under:- "Thus, from the questions raised by the
Hon'ble Court and the answers given to each of them by the Hon'ble Court as
indicated above, we are fully convinced that although the Hon'ble Court declined
to give protection of Article 30(1) or protection under Section 26(a) of the Constitution
to the Ramakrishna Mission and the college established by it, the Court certainly
decided in a most assertive manner that having regard to the background of the
establishment of the college and having regard to the stand taken by the Government
of West Bengal since inception of the college in the matter of its governance
and management with special reference to office memo dated 18th April, 1978, there
is no need to ask for implementation of the provisions of the Act of 1975 or
the Act of 1978."
13.
The
Division Bench negated the contentions of the learned counsel for the writ
petitioners/ appellants that in view of the provisions contained in the West Bengal
Act of 1975, West Bengal Act of 1978 and the Calcutta University First Statute,
1979, the college could not be allowed to have the Monk as Principal. It is observed
that the Government was very much aware of the fact that in the matter of this
college, the general procedure for selection of a Principal through the College
Service Commission shall not be made applicable. It is further observed that natural
consequence of the aforesaid conclusion was that there would be no application
under the provisions of the Calcutta University First Statute, 1979, aimed at filling
up of temporary vacancy of the post of Principal like other Government sponsored
colleges. In the concluding paragraphs, the Division Bench observed as
follows:-
"After close
examination of the judgment of the Apex Court rendered in the case of Bramchari
Sidheswar Shai's (supra), we are seriously contemplating whether the present writ
petition at all was maintainable before the learned Single Judge as the parties
of the present writ petition are almost identical of the previous writ petition
and almost same issues as raised in the present petition were matter of
consideration before the Apex court and further we are of the view that following
the long established principle of judicial discipline and binding precedent, it
was not at all permissible to make any departure from the conclusion reached by
the Apex court which has a binding effect upon the writ petitioners who were parties
to the earlier adjudication and that apart, the present writ petition is also barred
under the principle of res judicata.
Thus, having regard to
the submissions of contesting parties and on examination of the materials
placed before us, we are of firm view that following the judgment of the Apex
Court rendered in the case of Bramchari Sidheswar Shai's (supra) and in view of
the recent office memo of the Government of West Bengal dated 30th April, 2004,
it was not permissible to reopen the issue once again and to issue any writ dishonouring
the mandate of the Apex Court when admittedly the State Government has not
deviated form its earlier stand relating to the special status accorded to the college.
We, therefore, find sufficient merit in the present appeal and in the stay
petition and we are inclined to allow the both. Accordingly, both the appeal and
the stay petition are allowed resulting in dismissal of the writ petition and setting
aside the judgment and order of the learned Single Judge delivered in connection
with Writ Petition No. 29805(W) of 1997. We, however, make no order as to costs
considering the fact and circumstances of the case."
14.
This
judgment is the subject matter of the present appeal. We have heard the learned
counsel for parties.
15.
Mr.
Prashant Bhushan, learned counsel appearing for the appellants submitted that
even if the College established by the Ramakrishna Mission enjoys a special status,
the appointment on the post of Principal would still has to be made in conformity
with the qualifications prescribed by the Government of West Bengal in its
Order dated 22nd February, 1994. Respondent No.3 does not even possess the qualifications
prescribed by the University Grants Commission. Moreover, respondent No.3 has not
cleared the eligibility test N.E.T./S.L.E.T. for Lecturer as required by the
UGC. His initial appointment as Acting Principal and thereafter his appointment
as permanent Principal was null and void having been made without following the
provisions contained in the West Bengal Act of 1975 and West Bengal Act of
1978. Learned counsel submits that the qualifications prescribed under the Government
Order dated 22nd February, 1994 were in fact amended by the subsequent G.O.s being
G.O. No. 625-Edn (CS) dated 16th June, 1999 read with G.O. No.1047-Edn (CS) dated
20th August, 2002.
These qualifications were
duly published through advertisement No. 2 of 2004. For the post of Principal, the
qualifications prescribed are as under:-"I. For General Degree
Colleges:(A) Academic qualifications:(a) Master degree in Arts/Science/
Commerce/Music/Fine Arts with at least 55% marks or its equivalent grade and good
academic record; Ph.D. Degree or evidence of its equivalent published work of
high standard and teaching/research experience in an affiliated degree college or
University/Other Institutions of Higher Education for at least 15 (fifteen)
years preferably with administrative experience. Or(b) Serving as reader in any
affiliated degree College or University/research Institute with total teaching experience
of not less than 15 years. Or(c) Serving as Selection Grade Lecturer in any affiliated
degree college with at least 55% marks at the Master's level and good academic
record with teaching experience not less than 15 years in any academic Institution
with authenticated administrative experience of at least five years and further
having published work equivalent to Ph.D. degree, the equivalence be evaluated by
the University/Selection Committee consisting of the subject experts who in turn
will have to mainly look in to the following aspects:-
a. Number of research paper
published,
b. Quality of research
paper,
c. Relevance of the
topic,
d. Journals where these have
been published."
16.
It
is submitted that respondent No.3 does not possess the Ph.D, degree. He also did
not possess fifteen years administrative experience at the time of his appointment.
Learned counsel further submitted that respondent No.3 has been appointed on
the said post merely because he is a monk at the Ramakrishna Mission. The very purpose
of prescribing minimum qualifications and method of selection for an important post
like Principal of an educational institution has been defeated. Learned counsel
further submitted that the Division Bench has wrongly relied on the judgment of
Bramchari Sidheswar Shai's case (supra). The aforesaid judgment had no relevance
to the issue which has been raised in the present proceedings.
17.
On
the other hand, Mr. L.N. Rao, learned senior counsel appearing for the respondent
Nos.1, 2 and 3 submits that the litigation in this case does not survive as the
appellants have retired. He further submits that the appellants have not sought
a writ of quo warranto rather the relief sought is that one of the senior teachers
should be appointed as Principal. The writ petition was based on individual grievances.
The relief claimed is also for the redressal of individual grievances. All the
appellants had made a claim based on their seniority and qualifications. Since
all the appellants have retired in the mean time, the issue has become academic.
This Court will, therefore,
decline to examine the matter on merits. He relies on the judgment of this Court
in the case of M.L. Binjolkar Vs. State of M.P. . On merits, the learned
counsel submits that the grievances of the appellants were that the respondent No.3
lacked fifteen years of experience. However, by now respondent No.3 possesses the
required fifteen years experience. He also relies on certain observations made
by this Court in the case of Ram Sarup Vs. Stat e of Haryana & Ors. The entire
controversy has been rendered academic in the peculiar facts and circumstances
of this case. In the alternative, the learned senior counsel submits that the writ
petition would have to be treated as public interest litigation. It is, however,
settled by this Court that public interest litigation would not be maintainable
in service law cases. In support of this submission, he relies on the judgments
of this Court in the cases of Dr. Duryodhan Sahu & Ors. Vs. Jitendra Kumar Mishra
& Ors4 and Gurpal Singh Vs. State of Punjab & Ors. Therefore, again no relief
can be granted to the writ petitioners/appellants.
18.
We
have considered the submissions made by the learned counsel for the parties. In
our opinion, there is much substance in the submissions made by Mr. L.N. Rao, Mr.
Dipankar P. Gupta and Mr. Bhaskar P. Gupta, learned senior counsel that at this
stage, litigation in this case does not survive as the appellants have retired.
Even if the writ petition is allowed and the appointment of respondent No.3 is declared
null and void, none of the appellants could be appointed on the post of Principal.
A perusal of the averments made in the writ petition before the High Court would
show that the gravamen of the grievances of the writ petitioners/appellants was
that they were all senior to Swami Sukhadevananda.
It was further
pointed out that he had only six years of teaching experience, while G.O. No. 149-Edn(CP)
dated 22nd February, 1994 prescribes a minimum teaching experience of sixteen years
with administrative experience. It was pointed out that on the one hand, respondent
No.3 did not possess the necessary experience and was appointed as the
Principal. On the other hand, the applications of the petitioner Nos. 1, 9 and 12
for the post of Principal made through appropriate channel were not at all
considered at any stage by the appropriate authority, though they are more qualified
and senior to Swami Sukhadevananda. It was further pointed out that petitioners
are suffering irreparable loss in the form of deprivation from being promoted
as a Teacher-in-Charge and compelled to serve under a junior in service and possessing
lesser qualifications. Again in Paragraph 41, it is stated that Swami Divyananda
is junior to all the petitioners. It was further pointed out that Dr. Biman Kumar
Mukherjee, was the then petitioner No. 1 and the then senior most Teacher. He had
put in more than three decades of lawful and approved service to the Institution.
He was, therefore,
lawful claimant to the post of Teacher-in-Charge of the college. Therefore, it
was a matter of great humiliation and injustice to all the petitioners to be forced
to serve under an illegally appointed person, who is junior to them all. In
Ground 3 of the writ petition, it is specially pleaded as follows:- "For that,
it is incumbent upon the respondents to appoint the senior most teacher, as
Teacher-in-Charge of the college in terms of the order contained in the letter No.C/31/Cir
dated 1st January, 1995 and Statute 101B (as amended) and for such failure of
the respondents to act in accordance with law the petitioners have been
deprived of their rights to the post and have suffered demotion and financial
loss." From the above, it becomes evident that the grievances of the writ petitioners
were that they have been compelled to work under a person, who was junior to them.
The petitioners having
retired from service, no relief could possibly be granted to them, even if the appointment
of respondent No.3 is held to be illegal or void. In such circumstances, in our
opinion, it would be an exercise in futility to examine the merits of the
controversy raised in the appeal. By the retirement of all the appellants
herein, the issues raised herein have been rendered academic. In M.L. Binjolkar's
case (supra), this Court was considering the legality of the orders passed by the
Madhya Pradesh State Administrative Tribunal, Jabalpur, setting aside the orders
of compulsory retirement passed against a number of employees by the State of Madhya
Pradesh. The four employees were directed to be reinstated. The writ petition filed
by the State of Madhya Pradesh was dismissed. The employees concerned were permitted
to join back pursuant to the orders of reinstatement passed by the Administrative
Tribunal. All the four employees, who were so reinstated, retired during the pendency
of proceedings. The appeal filed by the State was dismissed by this Court with the
following observations:-
"In view of the
undisputed position that the four employees who were directed to be reinstated
had, in fact, joined back service and have retired on reaching the age of superannuation,
therefore, examination in their cases as to the correctness of the view expressed
by the High Court would be an exercise in futility. Though, implementation of the
Court's order does not render challenge to an order infructuous, yet the fact situation
of the present case makes the issue academic. This Court did not grant stay on the
High Court's order. The employees concerned, as noted above after reinstatement
have retired. In these peculiar circumstances, we do not think it necessary to examine
correctness of the High Court's order on merits. Therefore, the appeals filed by
the State -- Civil Appeals Nos. 8695-97 of 2002 and 8663 of 2002 are dismissed.
We make it clear that we have not expressed any opinion on the correctness of the
High Court's judgment as we have dismissed the appeals only on the ground that the
employees concerned have already retired and it would not be in the interest of
anybody to go into the merits." Similarly, in the case of Sumedico Corporation
& Anr. Vs. Regional Provident Fund Commr. , this Court declined to go into the
vires of Section 7(a) of the Employees Provident Fund and Miscellaneous
Provisions Act, 1952 as during the pendency of the appeal, the Legislature itself
amended the provisions of the Act by inserting Section 7(d) providing for remedy
of an appeal before the Appellate Tribunal. In view of this development, it was
observed that the question of challenge to the vires of Section 7(a) on the
ground that there was no appeal provided under the Act does not survive and it
has become academic.
In the case of State of
Manipur & Ors. Vs. Chandam Manihar Singh, the respondent had been removed
from the post of Chairman of the Manipur State Pollution Control Board by the Governor
of Madhya Pradesh in exercise of the powers under Section 5(3) read with
Section 6(1)(g) of the Act by 6 (1998) 8 SCC 3817 (1999) 7 SCC 503 the order dated
19th October, 1998. The respondent carried the matter in a writ petition before
the High Court of Assam, Imphal Branch. The learned Single Judge, who heard this
writ petition was pleased to allow the same on 30th April, 1999.
It may be noted that the
learned Single Judge had directed that the respondent has continued to hold the
office of the Chairman as his removal was set aside and his tenure will end on 15th
October, 1999 counting three years from 16th October, 1996 when he was appointed
as the Chairman of the Board pursuant to earlier order. The State of Manipur
unsuccessfully carried the matter in an appeal before the Division Bench. When the
appeal filed by the State of Manipur came up for hearing before this Court, the
learned counsel for the respondent submitted that pursuant to the orders of the
High Court, the respondent has continued as a Chairman of the Board and his
tenure is almost coming to end and he does not intend to continue as Chairman
beyond 15th October, 1999. It was submitted by the learned counsel for the
respondent that the issue raised by the State of Manipur has almost become
academic as no interim relief was granted by this Court against the order of the
High Court. Nor any interim relief had been granted pending appeal against the order
of the learned Single Judge by the Division Bench of the High Court. In these circumstances,
this Court observed as follows:-
"Having given
our anxious consideration to the rival contentions, we find that as the High Court's
direction in favour of the respondent's tenure which is to expire on 15-10-1999
has almost worked itself out and less than a month remains for him to act as Chairman
of the Board, the first grievance raised by learned Senior Counsel for the appellants
in connection with the removal of the respondent by order dated 19-10-1998 has become
of academic interest. We, therefore, did not permit learned Senior Counsel for the
appellants to canvass this point any further before us. That takes us to the
consideration of the second point."In our opinion, the aforesaid observations
of this Court would be clearly applicable in the facts and circumstances of
this case.
19.
There
is another reason why no relief, at present could perhaps be granted to the
appellants. Throughout the proceedings before the High Court as well as before
this Court, no interim relief was granted by restraining respondent No.3 from performing
the functions of a Principal. He has continued to function on the aforesaid
basis since his appointment on 14th May, 1999 as Acting Principal and then on
from 23rd March, 2001 onward as Principal. Even according to the appellants, at
the time of his appointment, respondent No.3 had possessed the experience of
only six years. Therefore, by now, he would have more than fifteen years of required
experience for the post of Principal. Therefore, the ground that the respondent
No.3 was not qualified as he did not possess the necessary experience would also
no longer be available to the appellants.
20.
In
similar circumstances, this Court, in the case of Ram Sarup (supra), observed
as follows:-
"The question then
arises as to what was the effect of breach of clause (1) of Rule 4 of the Rules.
Did it have the effect of rendering the appointment wholly void so as to be
completely ineffective or merely irregular, so that it could be regularised as and
when the appellant acquired the necessary qualifications to hold the post of Labour-cum-Conciliation
Officer. We are of the view that the appointment of the appellant was irregular
since he did not possess one of the three requisite qualifications but as soon as
he acquired the necessary qualification of five years' experience of the working
of Labour Laws in any one of the three capacities mentioned in clause (1) of Rule
4 or in any higher capacity, his appointment must be regarded as having been regularised.
The appellant worked as Labour- cum-Conciliation Officer from January 1, 1968 and
that being a post higher than that of Labour Inspector, or Deputy Chief
Inspector of Shops or Wage Inspector, the experience gained by him in the working
of Labour Laws in the post of Labour-cum-Conciliation Officer must be regarded as
sufficient to constitute fulfilment of the requirement of five years' experience
provided in clause (1) of Rule 4.
The appointment of the
appellant to the post of Labour-cum-Conciliation Officer, therefore, became regular
from the date when he completed five years after taking into account the period
of about ten months during which he worked as Chief Inspector of Shops. Once his
appointment became regular on the expiry of this period of five years on his
fulfilling the requirements for appointment as Labour-cum- Conciliation Officer
and becoming eligible for that purpose, he could not thereafter be reverted to the
post of Statistical Officer. The order of reversion passed against the appellant,
was, therefore, clearly illegal and it must be set aside." A perusal of the
above would show that the appellant therein did not possess the necessary experience
of five years of the working of labour laws. It was held that his appointment was
irregular since he did not possess the necessary experience. However, during the
pendency of the proceedings, he had acquired the necessary experience and, therefore,
the appointment must be regarded as having been regularised. The aforesaid
ratio would be squarely applicable to the appointment of respondent No.3.
21.
Mr.
Prashant Bhushan, however, submitted that the appeal would not be rendered infructuous
by the mere retirement of the appellants. Learned counsel submitted that all
the appellants have been engaged in the field of education throughout their lives.
Therefore, deeply interested in ensuring that the standards of education are maintained.
They are deeply concerned that of appointment for the post of Principal shall be
made in accordance with the statutory provisions. Therefore, the appellants would
have the locus standi to continue the proceedings.
22.
We
are unable to accept the aforesaid submission made by the learned counsel. As noticed
in the earlier part of the judgment, the entire pleadings in the writ petition
are founded on the personal grievance of the writ petitioners/appellants. The writ
petitioners have not come before this Court as educationists. Merely because they
are senior most teachers in the same institution, would not necessarily give rise
to the presumption, that they had filed the writ petition in public interest.
In our opinion, a pure and simple service dispute is sought to be camouflaged
as a public interest litigation. This Court on numerous occasions negated such efforts
in disguising the personal grievances as public interest litigation.
It is, however, not
necessary to recapitulate the oft quoted caution, save and except the observations
made by this Court in the case of Gurpal Singh (supra). In paragraphs 10, 11
and 12 it is observed as follows : "10. Public interest litigation is a weapon
which has to be used with great care and circumspection and the judiciary has to
be extremely careful to see that behind the beautiful veil of public interest
an ugly private malice, vested interest and/or publicity- seeking is not lurking.
It is to be used as an effective weapon in the armoury of law for delivering social
justice to the citizens.
The attractive brand name
of public interest litigation should not be allowed to be used for suspicious products
of mischief. It should be aimed at redressal of genuine public wrong or public injury
and not publicity-oriented or founded on personal vendetta. As indicated above,
court must be careful to see that a body of persons or member of the public, who
approaches the court is acting bona fide and not for personal gain or private motive
or political motivation or other oblique consideration.
The court must not allow
its process to be abused for oblique considerations by masked phantoms who
monitor at times from behind. Some persons with vested interest indulge in the pastime
of meddling with judicial process either by force of habit or from improper motives
and try to bargain for a good deal as well as to enrich themselves. Often they are
actuated by a desire to win notoriety or cheap popularity. The petitions of
such busybodies deserve to be thrown out by rejection at the threshold, and in
appropriate cases with exemplary costs.
11. The Council for
Public Interest Law set up by the Ford Foundation in USA defined "public
interest litigation" in its Report of Public Interest Law, USA, 1976 as
follows:"Public interest law is the name that has recently been given to efforts
which provide legal representation to previously unrepresented groups and interests.
Such efforts have been undertaken in the recognition that ordinary marketplace
for legal services fails to provide such services to significant segments of the
population and to significant interests. Such groups and interests include the
proper environmentalists, consumers, racial and ethnic minorities and others."
[See B. Singh (Dr.) v. Union of India7, SCC p. 373, para 13.]
12. When a particular
person is the object and target of a petition styled as PIL, the court has to be
careful to see whether the attack in the guise of public interest is really intended
to unleash a private vendetta, personal grouse or some other mala fide object. Since
in service matters public interest litigation cannot be filed there is no scope
for taking action for contempt, particularly, when the petition is itself not
maintainable. In any event, by order dated 15-4-2002 this Court had stayed operation
of the High Court's order." The aforesaid observations have been reiterated
by this Court in the case of P.Seshadri Vs. S.Mangati Gopal Reddy & Ors ,
in the following words:-
"The High Court
has committed a serious error in permitting respondent No.1 to pursue the writ
petition as a public interest litigation. The parameters within which Public Interest
Litigation can be entertained by this Court and the High Court, have been laid down
and reiterated by this Court in a series of cases. By now it ought to be plain
and obvious that this Court does not approve of an approach that would encourage
petitions filed for achieving oblique motives on the basis of wild and reckless
allegations made by individuals, i.e., busybodies; having little or no interest
in the proceedings. The credentials, the motive and the objective of the petitioner
have to be apparently and patently aboveboard. 8 2011 (4) SCALE 41 Otherwise
the petition is liable to be dismissed at the threshold."
23.
We
are, therefore, unable to accept the aforesaid submission as it is tantamount to
treating the writ petition as public interest litigation. As noticed above, the
entire grievance of the writ petitioners/appellants was personal. They were all
aggrieved and humiliated for being compelled to serve under a Principal junior
to them in service. Therefore, it could not be treated as a public interest litigation.
This Court has repeatedly disapproved the tendency of disgruntled employees
disguising pure and simple service dispute as public interest litigation. The observations
made by this Court in the case of Dr. B. Singh vs. Union of India & Ors. would
be of some relevance and we may notice the same. In paragraph 16, it is
observed as follows :
"As noted
supra, a time has come to weed out the petitions, which though titled as public
interest litigations are in essence something else. It is shocking to note that
courts are flooded with a large number of so-called public 9 (2004) 4 SCC 363 interest
litigations, whereas only a minuscule percentage can legitimately be called as
public interest litigations. Though the parameters of public interest litigation
have been indicated by this Court in a large number of cases, yet unmindful of the
real intentions and objectives, courts at times are entertaining such petitions
and wasting valuable judicial time which, as noted above, could be otherwise utilized
for disposal of genuine cases. Though in Duryodhan Sahu (Dr) v. Jitendra Kumar Mishra8
this Court held that in service matters PILs should not be entertained, the inflow
of the so-called PILs involving service matters continues unabated in the courts
and strangely are entertained. The least the High Courts could do is to throw them
out on the basis of the said decision."
24.
We
are also unable to accept the submission of Mr. Prashant Bhushan that the writ petition
can be treated as a writ in the nature of a quo warranto. It appears that the
appellants had not claimed a writ of quo warranto either before the learned
Single Judge or before the Division Bench of the High Court. Even in this
Court, it appears to us that Mr. Prashant Bhushan has made the submission as a weapon
of last resort. As noticed earlier, during the pendency of the proceedings,
respondent No. 3 has acquired the experience of sixteen years. The requirement
under Rules was of fifteen years experience, it would, therefore, not be appropriate
to go into the question as to whether a writ of quo warranto would lie in the present
case or not. In our opinion, it would be an exercise in futility. The issue has
become purely academic.
25.
Before
we part with this judgment, we make it clear that we have not expressed any opinion
on the correctness of the High Court's judgment as we have dismissed the appeal
only on the ground that the concerned appellants have already retired from service
and it would not be in the interest of anybody to go into the merits.
26.
In
view of the above, the appeal is dismissed.
...................................J.
[B.Sudershan Reddy]
...................................J.
[Surinder Singh Nijjar]
New
Delhi
April
18, 2011.
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