DINESH CHANDRA SHUKLA versus STATE OF U.P. & ORS. on 24 March 2022

DINESH CHANDRA SHUKLA

v.

STATE OF U.P. & ORS.

(Civil Appeal No. 1913 of 2022)

MARCH 24, 2022

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Service Law: Appointment – Appellant was engaged byRespondent-University as ‘Guest lecturer’ to teach ‘Karam Kand’to the students in the Department of Sanskrit – University issued anadvertisement inviting application to one post of lecturer in ‘KaramKand’ – Appellant applied for the post – Selection Committeerecommended the candidature of appellant for appointment to saidpost – But the Executive Council disagreed with the SelectionCommittee on the ground that the Vice Chancellor failed to requestthe Chancellor to nominate subject experts in the SelectionCommittee – Accordingly, Chancellor annuled the recommendationfor appointment of appellant – Appellant filed writ petition whichwas allowed and the matter remanded back to the Chancellor onthe ground that admittedly there was no University in the countryawarding a post graduate degree in ‘Karm Kand’ and, therefore,there were actually no experts in the subject of ‘Karm Kand’ –Pursuant to the direction, the Chancellor considered the matter andagain rejected the recommendation of Selection Committee –Appellant filed fresh writ petition – By impugned order, High Courtdismissed writ petition holding that after the order of remand, theChancellor had consulted a few experts and found that the subjectof ‘Karm Kand’ is altogether different from the subject ‘Sanskrit’and that therefore, with the qualifications that the appellantpossessed, he could not be appointed – On appeal, held: Theconsultations by the Chancellor with certain persons and theinformation gathered by him were beyond the scope of order ofremand passed by High Court – The information collected by theChancellor not only enlarged his original objections to the selectionof the appellant but was also gathered behind the back of theappellant – In the absence of any specific prescription, the University

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Aought to have referred the question of what constitutes relevantsubjects, before the process of selection began – Neither theUniversity nor the Chancellor took a stand in the first instance thatthe appellant was not qualified in the “relevant subject” – Theirinitial objection was that the Selection Committee did not includethe subject experts nominated by the Chancellor – After it wasBpointed out that there were no subject experts in ‘Karm Kand’, asno University was offering a specific course in ‘Karm Kand’, theHigh Court thought fit to remand the matter back to the Chancellor– The Chancellor went on a detour to find out what are thedifferences between the subject of Sanskrit and the subject of ‘KarmCKand’ – This was clearly erroneous – The parameters to be appliedto a case where an incumbent to a post does not fulfil thequalifications prescribed for a post, are different from theparameters to be applied to a case where no specific qualificationsare prescribed for a particular post – The question as to whatconstitutes “relevant subject” should have been left to the experts,Dbefore the advertisement was issued, especially when the statutesdid not prescribe any specific qualifications – This did not happenin this case – In fact the question whether subject experts wereavailable at all in ‘Karm Kand’, itself became a matter of controversy– The entire controversy appears to have arisen as a result of theEtug of war in the year 2006 between the then Chancellor and thethen Vice Chancellor, making the appellant a victim in the line offire – Unfortunately, the High Court omitted to take note of all this– In the case on hand no candidate was available with a postgraduate degree in ‘Karm Kand’ and the Selection Committee whichcomprised of a representative of the Department of Sanskrit foundFthe appellant to possess a Master’s degree in the relevant subject –The appointment itself was to the post in the Department of Sanskrit– In view of the fact (i) that the appellant has been teaching thevery same subject for the past nearly 16 years; and (ii) that theoriginal Selection Committee which found him eligible forGappointment, comprised of Professors from the Department ofSanskrit of which the diploma course in ‘Karm Kand’ was a part, adirection issued to respondent-University to regularise the servicesof the appellant.

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Allowing the appeal, the Court

HELD: 1. The University conceded that the statutes donot contain any prescription regarding the post of Lecturer in‘Karm Kand’. It also conceded that the advertisement did notindicate any specific qualification except that the aspirant shouldhold a post graduate degree in the relevant subject. In theabsence of any specific prescription, the University ought to havereferred the question of what constitutes relevant subjects, beforethe process of selection began. Neither the University nor theChancellor took a stand in the first instance that the appellantwas not qualified in the “relevant subject”. Their initial objectionwas that the Selection Committee did not include the subjectexperts nominated by the Chancellor. After it was pointed outthat there were no subject experts in ‘Karm Kand’, as noUniversity was offering a specific course in ‘Karm Kand’, theHigh Court thought fit to remand the matter back to theChancellor, to ascertain whether subject experts were actuallyavailable and whether the failure of the Vice Chancellor to seeknomination of such experts from the Chancellor vitiated the wholeprocess. Finding that the answer to the said question was toodifficult to be provided, the Chancellor went on a detour to findout what are the differences between the subject of Sanskritand the subject of ‘Karm Kand’. This was clearly erroneousand the High Court unfortunately omitted to notice this mistake.[Paras 10, 11][822-C-F]

2. The parameters to be applied to a case where anincumbent to a post does not fulfil the qualifications prescribedfor a post, are different from the parameters to be applied to acase where no specific qualifications are prescribed for a particularpost. The question as to what constitutes “relevant subject” shouldhave been left to the experts, before the advertisement wasissued, especially when the statutes did not prescribe any specificqualifications. This did not happen in this case. In fact the questionwhether subject experts were available at all in ‘Karm Kand’,itself became a matter of controversy. The entire controversyappears to have arisen as a result of the tug of war in the year2006 between the then Chancellor and the then Vice Chancellor, AB

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Amaking the appellant a victim in the line of fire. Unfortunately,the High Court omitted to take note of all this. The expression“equivalent qualifications” has a different connotation than theexpression “relevant subject”. [Paras 13, 14][823-A-D]

Punjab University v. Narinder Kumar and OthersB(1999) 9 SCC 8 – held inapplicable.Ganapath Singh Gangaram Singh Rajput v. GulbargaUniversity (2014) 3 SCC 767 : [2013] 17 SCR 1025– referred to.

3. In the case on hand, no candidate was available with aCpost graduate degree in ‘Karm Kand’ and the Selection Committeewhich comprised of a representative of the Department of Sanskritfound the appellant to possess a Master’s degree in the relevantsubject. The appointment itself was to the post in the Departmentof Sanskrit. In fact, during the pendency of the writ petition beforeDthe High Court, the Academic Council of the University held ameeting on 22.08.2013. Agenda No.10 for the said meeting relatedto the qualifications for appointment to the post of Lecturer in‘Karm Kand’. The recommendation made by the Head of theDepartment of Sanskrit was accepted by the Academic Council.If only the High Court had looked into the minutes of the meetingsEof the Academic Council it could have easily appreciated that theappellant was entitled to succeed. [Paras 16, 17, 18][824-A-C, E]

4. In view of the fact (i) that the appellant has been teachingthe very same subject for the past nearly 16 years; and (ii) thatthe original Selection Committee which found him eligible forFappointment, comprised of Professors from the Department ofSanskrit of which the diploma course in ‘Karm Kand’ was a part,a direction is issued to the 5[th] respondent-University to regularisethe services of the appellant. [Para 20][824-G-H; 825-A]

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1913of 2022.

From the Judgment and Order dated 14.05.2015 of the High Courtof Judicature at Allahabad in Civil Misc. Writ Petition No.63137 of 2012.

Kavin Gulati, Sr. Adv., Avnish Pandey, Ms. Sneha Kalita, Ms.Jessy Kurian Advs. for the Appellant.

Sanjay Kumar Tyagi, Prabhat Kumar Rai, Ajay Kumar Pandey,Ms. Neela Gokhale, Ms. Kamakshi S. Mehlwal, Sandeep DevashishDas, Lakshya Dheer, Advs. for the Respondents.

The Judgment of the Court was delivered by

V. RAMASUBRAMANIAN, J.

1. Aggrieved by the dismissal of his writ petition seeking to quashan order of the Chancellor of the Mahatma Gandhi Kashi VidyapeethUniversity (hereinafter referred to as ‘the University’), rejecting hisrequest to be appointed as Lecturer (Karm Kand), the appellant is beforethis Court.

2. We have heard the learned counsel for the appellant, the learnedcounsel appearing for the Chancellor of the University, the learnedcounsel for University itself and the learned standing counsel for theState.

3. The brief facts necessary for the disposal of the above appealare as follows:-

(i) Vide order dated 22.10.1996, the State of U.P sanctionedone post of Lecturer in ‘Karm Kand’ in the Department ofSanskrit in the University, which is arrayed as the 5[th]respondent herein. The Chancellor of the University, theExecutive Council and the Vice Chancellor of the Universityare arrayed separately as respondents 2 to 4 herein forreasons not difficult to fathom.

(ii) It appears that one Shri Jai Prakash Pandey was initiallyappointed to the said post and his services were alsoregularised. But the regularisation of his services was setaside by the High Court by an order dated 19.08.2006 inWrit Petition No.35149 of 1999.

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A(iii)Thereafter, the appellant herein was engaged by theUniversity as a Guest Lecturer to teach ‘Karm Kand’ tothe students in the Department of Sanskrit. Theremuneration payable to him was fixed at Rs.250/- perlecture subject to a maximum of Rs.5,000/- per month.

B(iv)A proposal to fill up the post on regular basis was submittedby the Head of the Department of Sanskrit on 16.10.2006.It was approved by the Vice-Chancellor on 18.10.2006.Pursuant thereto, the University issued an advertisementbearing Advertisement No.2 of 2006, inviting applicationsfor appointment to one post of Lecturer in ‘Karm Kand’.CThe advertisement also contained invitation for applicationsfor various other posts in various departments. We are notconcerned in this case with the posts in other departmentsfor which applications were invited in the sameadvertisement. Suffice it to say that applications were invitedDfor appointment to 8 posts of lecturers in various subjects,one of which was for appointment to the post of Lecturerin ‘Karm Kand’.

(v) Unfortunately, a controversy erupted, when the thenChancellor of the University issued an oral order restrainingEthe Vice-Chancellor from convening the meetings ofSelection Committees pursuant to the aforesaidadvertisement, on the ground that the Vice-Chancellor wasdue to retire on 31.12.2007. But the High Court, by an orderdated 04.10.2007 passed in a writ petition, made it clearthat statutory functions performed by the Vice ChancellorFcannot be put on hold by oral orders of the Chancellor.Thereafter, a written order was issued by the Chancelloron 14.12.2007. However, the said order was challenged inanother writ petition and the same was stayed by theAllahabad High Court, paving the way for the SelectionGCommittees to proceed further pursuant to theAdvertisement No.2 of 2006.

(vi) As a consequence, the Selection Committees in respect ofvarious posts held meetings and made recommendations.Some of these recommendations were accepted by theHExecutive Council by its Resolution dated 24.12.2007.

(vii) Since the Vice-Chancellor retired in the meantime beforeAthe recommendations were implemented, a batch of writpetitions came to be filed. A spate of interim orders cameto be passed pursuant to which the Executive Councildecided to refer the recommendations of the SelectionCommittees to the Chancellor under the proviso to SectionB31(8)(a) of the U.P. State Universities Act, 1973.

(viii) In the case of the appellant, the Selection Committee hadrecommended his candidature for appointment to the postof Lecturer in ‘Karm Kand’. But the Executive Councildisagreed with the Selection Committee on the ground thatCthe Vice-Chancellor failed to request the Chancellor tonominate subject experts in the Selection Committee. It isrelevant to note here that the Selection Committee shortlistedonly two persons, one of whom was the appellant and otherDr. Jai Prakash Pandey. The said Dr. Jai Prakash Pandeyhad secured only 49.2% marks as against the minimumDprescription. Therefore, he was not issued with anyinterview call letter.

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(ix) Agreeing with the decision of the Executive Council, theChancellor passed an order dated 23/28.12.2010 annullingthe recommendation made by the Selection Committee forthe appointment of the appellant.

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(x) The appellant challenged the said order of the Chancellorby way of a writ petition in Writ Petition No.6389 of 2011.By an Order dated 02.12.2011, the said writ petition wasallowed and the matter remanded back to the Chancellor.The reason why the matter was remanded back to theChancellor was that admittedly there was no University inthe country awarding a post graduate degree in ‘KarmKand’ and that, therefore, there were actually no expertsin the subject of ‘Karm Kand’, as sought to be projected bythe Chancellor. Since the question whether subject expertswere at all available in the field of ‘Karm Kand’ went tothe root of the matter, the High Court thought fit to remandthe matter back to the Chancellor.

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(xi) Pursuant to the aforesaid direction, the Chancellorconsidered the matter and passed a fresh order dated H

A24.08.2012, rejecting the recommendation of the SelectionCommittee. This order was challenged by the appellant byway of a fresh writ petition in Writ Petition No.63137 of2012. By the Order dated 14.05.2015 impugned in thisappeal, the Division Bench of the Allahabad High Courtdismissed the writ petition of the appellant on the groundBthat after the order of remand, the Chancellor had consulteda few experts and found that the subject of ‘Karm Kand’ isaltogether different from the subject Sanskrit and thattherefore, with the qualifications that the appellant possessed,he could not have been selected for appointment. It isCagainst this order of the High Court that the appellant isbefore us.

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4. Before we proceed to consider the core issue arising forconsideration, we are obliged to take note of the fact that admittedly theappellant was engaged as a Guest Lecturer on remuneration of Rs.250/D- per lecture subject to a maximum of Rs.5000/- per month from theyear 2006. Ever since then the appellant has been teaching studentsundergoing a one year diploma course in ‘Karm Kand’ for the past nearly16 years.

5. The next thing we have to take note of before we take up forEconsideration the issue arising in the above appeal, is that the appellant,and perhaps the entire selection process undertaken in 2006 by theUniversity, became victims of the crossfire between the Chancellor andthe Vice-Chancellor. Admittedly, the post was originally filled up by aperson who was actually the purohit to the then Governor of State ofUttar Pradesh. But his appointment was set aside by Allahabad HighFCourt by an order dated 19.08.2006. It is only thereafter thatAdvertisement No.2 of 2006 came to be issued, inviting applications forappointment to the post.

6. But it is of interest to note that the advertisement did not specifyparticularly that a candidate applying for the post of Lecturer in ‘KarmGKand’ should hold a Master’s Degree in ‘Karm Kand’. In fact the orderof the Chancellor dated 24.08.2012 which became the subject matter ofthe writ petition, specifically concedes as follows: “there is no mentionof the subject Karm Kand in the Statutes of the Mahatma GandhiKashi Vidyapeeth nor any Ordinance under Section 51/52 nor anyHRegulations under Section 53 of the U.P. State Universities Act,

1973. The order of the Chancellor only relied upon Statute 11.01(1)of the University First Statutes, 1977, which stipulated that theminimum qualifications required for appointment to the post ofLecturer in the University or a Master’s Degree or equivalent degreein relevant subject with at least 55% marks and consistently goodacademic record and NET or Ph.D. degree”.

7. In his order dated 24.08.2012, the Chancellor held that theappellant did not hold a Master’s degree in ‘Karm Kand’. But before hecame to such a conclusion, the Chancellor as well as the High Courtought to have verified (i) whether the Statutes prescribed any specificqualifications necessary for appointment to the post of Lecturer in ‘KarmKand’; and (ii) if not, what should be considered as “relevant subjectand by whom”.

8. It must be pointed out at this stage that in the first instance, theExecutive Council took a stand that the selection of the appellant wasvitiated primarily on account of non-inclusion of subject experts in thefield of ‘Karm Kand’. The appellant was not held by the ExecutiveCouncil to be a person not possessing the prescribed qualifications forappointment. This is why the order of remand passed by the High Courton 02.12.2011 specifically directed the Chancellor to consider whetheror not there were subject experts in ‘Karm Kand’ to be included in theSelection Committee. Instead of confining himself to the said question,the Chancellor seems to have taken the opinion of one Professor GayaRam Pandey, Head of the Department of Sanskrit to come to theconclusion that ‘Karm Kand’ and Sanskrit are two separate subjectsand that while ‘Karm Kand’ is a practical subject, Sanskrit is not. Thesaid Professor Gaya Ram Pandey also seems to have provided informationto the effect (i) that a few universities such as Banaras Hindu University,Sampurnanand Sanskrit University, Lucknow University, and Lal BahadurShashtri Rashtriya Sanskrit Vidyapeeth have included ‘Karm Kand’ asa subject in their courses; and (ii) that, however, according to theinformation from the Registrar of Lal Bahadur Shashtri Rashtriya SanskritVidyapeeth, there is no post of Lecturer in ‘Karm Kand’. In his orderdated 24.08.2012 the Chancellor also recorded that certain universitiesteach the subject of Karm Kand/Paurohitya and provide degrees likeAcharya (M.A) and Vidyavaridhi (Ph.D.).

9. Obviously the consultations made by the Chancellor with certainpersons and the information gathered by him before passing the order A

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Aimpugned before the High Court, were beyond the scope of order ofremand passed by the High Court. The information collected by theChancellor not only enlarged his original objections to the selection ofthe appellant but was also gathered behind the back of the appellant.

10. In the course of hearing of the above appeal, we raised aBpointed query to Shri Sandeep D. Das, learned counsel appearing forthe University as to whether the Statutes of University prescribed anyspecific qualifications for appointment to the post of Lecturer in ‘KarmKand’ or at least whether Advertisement No.2 of 2006 indicated thequalifications. He had no alternative but to concede that the statutes donot contain any prescription regarding the post of Lecturer in ‘KarmCKand’. He also conceded that the advertisement did not indicate anyspecific qualification except that the aspirant should hold a post graduatedegree in the relevant subject.

11. In the absence of any specific prescription, the Universityought to have referred the question of what constitutes relevant subjects,Dbefore the process of selection began. Neither the University nor theChancellor took a stand in the first instance that the appellant was notqualified in the “relevant subject”. Their initial objection was that theSelection Committee did not include the subject experts nominated bythe Chancellor. After it was pointed out that there were no subject expertsEin ‘Karm Kand’, as no University was offering a specific course in‘Karm Kand’, the High Court thought fit to remand the matter back tothe Chancellor, to ascertain whether subject experts were actuallyavailable and whether the failure of the Vice Chancellor to seek nominationof such experts from the Chancellor vitiated the whole process. Findingthat the answer to the said question was too difficult to be provided, theFChancellor went on a detour to find out what are the differences betweenthe subject of Sanskrit and the subject of ‘Karm Kand’. This was clearlyerroneous and the High Court unfortunately omitted to notice this mistake.

12. Admittedly, the appellant has been teaching ‘Karm Kand’ forthe past nearly 16 years in the same University. Though the learnedGcounsel for the University stated that his continuance was on account ofan interim order of status quo passed by this Court, we notice that theinterim order of status quo was passed only on 14.09.2015. Unless theappellant was continuing as on that date, the order of status quo wouldhave meant nothing for him.H

13. The parameters to be applied to a case where an incumbentto a post does not fulfil the qualifications prescribed for a post, aredifferent from the parameters to be applied to a case where no specificqualifications are prescribed for a particular post. The question as towhat constitutes “relevant subject” should have been left to the experts,before the advertisement was issued, especially when the statutes didnot prescribe any specific qualifications. This did not happen in this case.In fact the question whether subject experts were available at all in‘Karm Kand’, itself became a matter of controversy. The entirecontroversy appears to have arisen as a result of the tug of war in theyear 2006 between the then Chancellor and the then Vice Chancellor,making the appellant a victim in the line of fire. Unfortunately, the HighCourt omitted to take note of all this.

14. The expression “equivalent qualifications” has a differentconnotation than the expression “relevant subject”. In PunjabUniversity vs. Narinder Kumar and Others[1], this Court was concernedwith the interpretation of the expression “relevant subject”. But in thatcase the advertisement itself prescribed “the essential qualifications”under one head and “desirable specialisation” under another head.Therefore, this Court found that though the words “relevant subject”did not throw any light on the question as to what are the relevant subjectsfor the post of a Lecturer in any specified subject, the column dealingwith “desirable qualifications” threw light upon what was relevant.Therefore, cases in which a clue is available in the advertisement itselfmay stand on a different footing than cases where there is no such clue.

15. In Ganapath Singh Gangaram Singh Rajput vs. GulbargaUniversity[2], this Court was concerned with a case where applicationswere invited for appointment to the post of Lecturer in MCA, fromcandidates holding a post graduate degree in the “relevant subject”. Asa matter of fact, this Court found that candidates with Masters’ degreein Computer Applications were available, but a candidate with Masters’degree in Mathematics was selected. This Court found fault with thedecision of the Board of Appointment in selecting the candidate with aMaster’s degree in Mathematics with a flawed reasoning thatMathematics is one of the subjects taught in MCA.

1 (1999) 9 SCC 8

2 (2014) 3 SCC 767

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2 (2014) 3 SCC 767

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16. In the case on hand no candidate was available with a postgraduate degree in ‘Karm Kand’ and the Selection Committee whichcomprised of a representative of the Department of Sanskrit found theappellant to possess a Master’s degree in the relevant subject. Theappointment itself was to the post in the Department of Sanskrit.

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B17. In fact, during the pendency of the writ petition before theHigh Court, the Academic Council of the University held a meeting on22.08.2013. Agenda No.10 for the said meeting related to the qualificationsfor appointment to the post of Lecturer in ‘Karm Kand’. Therecommendation made by the Head of the Department of Sanskrit wasaccepted by the Academic Council. Agenda Item No.10 of the saidCmeeting of the Academic Council reads as follows:

“Agenda No.10: Recommendations of Department of Sanskrit.Prof Uma Rani Tripathi Head of the Department, Departmentof Sanskrit gave the information related to therecommendation of the Department of Sanskrit by apprisingDthat the Academic Qualification of the Karm Kand and forthe post of Professor of Sanskrit be kept one and the same aswell as the Specialized experience of karm kand be stipulatedas compulsory which was passed unanimously”

18. If only the High Court had looked into the minutes of theEmeetings of the Academic Council it could have easily appreciated thatthe appellant was entitled to succeed.

19. Under Section 25(1)(c) of the U.P. University Act, theAcademic Council is empowered to advise the Executive Council withregard to the qualifications required to be possessed by persons impartingFinstructions on particular subjects. Therefore, the minutes of the meetingsof the Academic Council dated 22.08.2013 has clinched the issue infavour of the appellant. Hence it is time for the University to put an endto this ‘Yuddh Kand’ and allow the appellant to move from ‘Karm Kand’to ‘Karm Phal Kand’.G20. Therefore, the appeal is allowed, the impugned order of the G20. Therefore, the appeal is allowed, the impugned order of theHigh Court is set aside and the writ petition filed by the appellant beforethe High Court is allowed, as prayed for. In view of the fact (i) that theappellant has been teaching the very same subject for the past nearly 16years; and (ii) that the original Selection Committee which found himeligible for appointment, comprised of Professors from the DepartmentH

of Sanskrit of which the diploma course in ‘Karm Kand’ was a part, adirection is issued to the 5[th] respondent-University to regularise theservices of the appellant. There shall be no order as to costs.

Devika Gujral

Appeal allowed.

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