POORAN CHAND versus CHANCELLOR & ORS. on 29 January 2021

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[2021] 1 S.C.R. 782

SUPREME COURT REPORTS

[2021] 1 S.C.R.

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POORAN CHAND

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CHANCELLOR & ORS.

(Civil Appeal Nos. 268-269 of 2021)

BJANUARY 29, 2021

[ASHOK BHUSHAN, R. SUBHASH REDDYAND M.R. SHAH, JJ.]

King George Medical University Act, Uttar Pradesh Act, 2002:s.53 – Applications invited for the post of Assistant Professors,CProfessors, Associate Professor and Lecturers – Appellant appliedfor the post of Assistant Professor whereas respondent no. 4 appliedfor the post of Lecturer – Appellant was selected and joined asAssistant Professor on 08.12.2005 – Respondent no. 4 joined asLecturer on 8.8.2005 – Respondent no. 4 was promoted on the postDof Assistant Professor on 8.8.2007 – Representations were submittedby respondent no. 4 to the university claiming seniority over theappellant based on his experience at the time of appointment asSenior Research Fellow in WHO – Chancellor rejected therepresentation of respondent no. 4 referring to the report sent bythe University that experience as senior Research Fellow in WHOEcannot be counted as experience – Respondent no. 4 filed writpetition – In writ petition, both the appellant as well as Universitycontested the claim of respondent no. 4 – High Court allowed thewrit petition – On appeal, held: s.53 provides that if any questionarises as to whether any person has been duly elected or appointed,Fthe matter shall be referred to the Chancellor, and the decision ofthe Chancellor thereon shall be final – s.53 also contains provisoto the effect that no reference in this Section shall be made morethan three months after the date when question could have beenraised for the first time – The object and purpose for entertainingany question regarding appointment within a period of three monthsGis that the members of the teaching faculty of the University be itLecturer or Assistant Professor are entrusted with teaching, whichis to be imparted according to academic calendar and it is in theinterest of the University that all doubts regarding appointment ofteachers are raised within a period of three months to have an earlydecision by Chancellor to give quietus to the disputes in theH

University – The present is not a case where appointment of appellantwas cancelled by any competent authority – Appellant wasappointed, recommended by Selection Committee with due approvalof the Executive Council and the appointment was made afteradvertisement – Challenge to appointment after more than threeyears cannot be entertained as respondent No.4 in his representationbefore the Chancellor never challenged the appointment ofappellant as Assistant Professor and had filed representation onlyclaiming seniority over appellant after he got promoted as AssistantProfessor himself in the year 2007 – Therefore, High Court oughtnot to have entertained the challenge to the appointment of appellantand ought to have confined the consideration of claim of respondentNo.4 for seniority over the appellant – When the appointment ofappellant was not challenged in reasonable time as per the provisionsof the Act, 2002, it is not in the ends of justice to permit therespondent No.4 to challenge such appointment in the High Courtin the writ petition for the first time, after more than four years ofthe appointment – There was no error in the order of the Chancellorrejecting the representation made by the respondent No.4 – Servicelaw – Seniority – Universities – Education/Educational Institutions.

Allowing the appeals, the Court

HELD: 1. There is no dispute to the fact that in pursuanceof advertisement, both appellant and respondent No.4 hadapplied respectively for the post of Assistant Professor andLecturer and Selection Committee recommended theirappointment and Executive Council in the meeting dated08.08.2005 approved the recommendations of SelectionCommittee appointing appellant as Assistant Professor andrespondent No.4 as Lecturer. [Para 9][791-D-E]

Conclusion

2. The University in its counter affidavit has relied andreferred to Section 53 of the U.P. Act No. 8 of 2002. Section 53provides that if any question arises whether any person has beenduly elected or appointed, the matter shall be referred to theChancellor, and the decision of the Chancellor thereon shall befinal. The Section also contains proviso to the effect that noreference in this Section shall be made more than three months ABC

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Aafter the date when question could have been raised for the firsttime. Although, by the second proviso, Chancellor can entertaina reference after expiry of the said period. There is an object andpurpose for entertaining any question regarding appointment ofmember of any authority or body whether any person has beenduly appointed within a period of three months. The members ofBthe teaching faculty of the University be it Lecturer or AssistantProfessor are entrusted with teaching, which is to be impartedaccording to academic calendar. It is in the interest of theUniversity that all doubts regarding appointment of teachers areraised within a period of three months to have an early decisionCby Chancellor to give quietus to the disputes in the University.[Paras 10, 11][791-E; 792-C-F]

3. From the facts, which have been brought on record, it isclear that the reference to the Chancellor was made byrespondent No.4 only on 13.02.2009, i.e., subsequent to he wasDpromoted as Assistant Professor. Chancellor in his order hasnoticed the substance of claim of respondent No.4. RespondentNo.4 has claimed to include the experience of Senior ResearchFellow in W.H.O. Respondent No.4 had submitted hisrepresentation to the Chancellor regarding seniority over theappellant and the appellant’s appointment as Assistant ProfessorEw.e.f. 08.08.2005 was not challenged. Respondent No.4 wantedthat his experience as Senior Research Fellow in W.H.O. be alsoincluded, which was not acceded to. Section 53 of the Act, 2002provides that any dispute regarding appointment in the Universityhas to be raised within a period of three months, the respondentFNo.4 could not have raised any challenge to the appointment ofappellant after lapse of more than three years. The Chancellorconsidered the representation of the respondent No.4 anddecided it on merits, since the Chancellor was of the view thatthe claim is essentially of seniority by respondent No.4 over the appellant. Thus, the appointment of appellant as AssistantGProfessor, which is approved on 08.08.2005 was not challengedor questioned by respondent No.4 in accordance with provisionsof the Act, 2002. Although, in the writ petition filed by respondentNo.4, he has made a prayer for quashing the appointment order H

dated 08.08.2005 of the appellant as Assistant Professor but theappointment of appellant as Assistant Professor having not beenchallenged before the Chancellor, he could not have beenpermitted to challenge the appointment of appellant. Appointmentdated 08.08.2005 could not be allowed to be challenged after fouryears in the writ petition. [Paras 12, 15, 16][792-F-G; 794-B-F]

4. The appellant is right in her submission that it was afterrespondent No.4 was promoted as Assistant Professor, hesubmitted representations and claimed before the Chancellorseniority over the appellant. The prayer of the respondent No.4that appellant should be reverted on the post of Lecturer couldnot have been entertained. There is no question of reversion ofthe appellant on the post of Lecturer when he was appointed asAssistant Professor on 08.08.2005. [Paras 17, 18][794-G-H;795-C-D]

5. There cannot be any dispute to the preposition that whenthe appointment is made in infraction of the recruitment rules,the same would be liable to be cancelled. The present is not acase where appointment of appellant was cancelled by anycompetent authority. The appellant was appointed, recommendedby Selection Committee with due approval of the ExecutiveCouncil and the appointment was made after due advertisement.[Para 21][796-E-F]

6. The Act which governs the appointment of AssistantProfessors and Lecturers in the University itself provides amechanism for questioning an appointment, i.e., by representationto the Chancellor that too within a period of three months. Anychallenge to appointment after more than three years cannot beentertained as already held that respondent No.4 in hisrepresentation before the Chancellor never challenged theappointment of appellant as Assistant Professor and had filedrepresentation only claiming seniority over appellant after he gotpromoted as Assistant Professor himself in the year 2007, HighCourt ought not to have entertained the challenge to theappointment of appellant in the writ petition and ought to haveconfined the consideration of claim of respondent No.4 forseniority over the appellant. When the appointment of appellant AB

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Awas not challenged in reasonable time as per the provisions ofthe Act, 2002, it is not in the ends of justice to permit therespondent No.4 to challenge such appointment in the High Courtin the writ petition for the first time, after more than four years ofthe appointment. [Para 26][798-C-F]

B7. The High Court committed an error in quashing theappointment of respondent No.4 as Assistant Professor, quashingthe order of the Chancellor as well as direction to treat theappellant as being appointed as a Lecturer. There was no errorin the order of the Chancellor rejecting the representation madeby the respondent No.4, which representation was referable toCSection 53 of Act No. 8 of 2002. High Court committed error inquashing the order as well as issuing directions. [Para 27][798-F-G]

Nagendra Chandra and Ors. v. State of Jharkhand andOrs. (2008) 1 SCC 798 : [2007] 12 SCR 608;DGovernment of Andhra Pradesh and Ors. v. K.Brahmanandam and Ors. (2008) 5 SCC 241 : [2008] 7SCR 140 – distinguished.

Pramod Kumar v. U.P. Secondary Education ServicesCommission and Ors. (2008) 7 SCC 153 : [2008] 4 SCRE559 – held inapplicable State of Jammu and Kashmir v. R.K. Zalpuri and Ors.(2015) 15 SCC 602 : [2015] 12 SCR 285 – referred to GCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 268-269 of 2021.

From the Judgment and Order dated 12.04.2018 and 15.03.2019of the High Court of Judicature at Allahabad, Lucknow Bench in C.M.Application No. 75983 of 2018 in Service Bench No. 1350 of 2009.H

S.R. Singh, Ms. Meenakshi Arora, Sr. Advs., Ms. ShikhaShrivastava, Ms. Ruchie Shrivastava, S.K. Singh Kalhans, Ms. PrachiPratap, Ms. Pallavi Pratap, M/s Pratap And Co., Ms. Neela Gokhale,Ms. Shruti Dixit, Harshal Gupta, Ms. Kamakshi S. Mehlwal, VishnuShankar Jain, Devvrat, Ms. Swati Setia, Aditya Kr. Dubey, Subas Ray,Advs. for the appearing parties.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J.

1. Leave granted.

2. These appeals have been filed challenging the Division Benchjudgment of High Court of Judicature at Allahabad, Lucknow Benchdated 12.04.2018 by which writ petition filed by respondent No.4 hasbeen allowed and the order of the Chancellor dated 08.07.2009 rejectingthe representation made by respondent No.4 was set aside.

3. Brief facts of the case for deciding these appeals are:

3.1 King George Medical University is a Medical University underthe by U.P. Act No.8 of 2002 namely the King George MedicalUniversity Act, Uttar Pradesh Act, 2002. An advertisement dated15.03.2005 was issued by U.P. King George’s University of DentalSciences, Lucknow (hereinafter referred to as “University”)inviting applications for the post of Professors, AssociateProfessors, Asstt. Professors and Lecturers.

3.2 The appellant made an application for appointment on thepost of Assistant Professor whereas respondent No.4 made anapplication for appointment on the post of Lecturer. Both theappellant and respondent No.4 were considered by the sameSelection Committee and recommendations of the SelectionCommittee were approved by Executive Council in its meetingdated 08.08.2005 approving the appointment of appellant asAssistant Professor and that of respondent No.4 as Lecturer. Theappellant, who was working as Assistant Professor in BRDMedical College, Gorakhpur after obtaining permission from Stateof U.P. joined as Assistant Professor on 08.12.2005.

3.3 The respondent No.4 submitted his joining as Lecturer on08.08.2005. The respondent No.4 was promoted on the post ofAssistant Professor on 08.08.2007 after completing three years A

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SUPREME COURT REPORTS

Aexperience. The representations were submitted by respondentNo.4 to the University claiming seniority over the appellant. Arepresentation was addressed by respondent No.4 to theChancellor dated 13.02.2009 regarding the appointment and claimof seniority as Assistant Professor in the University. Therespondent No.4 claimed that his experience at the time ofBappointment as Senior Research Fellow in W.H.O. was notconsidered. His representation to the Chancellor principally claimedseniority over appellant based on his experience claiming that hehas also completed requisite experience at the time of hisappointment on the post of Assistant Professor.

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3.4 The Chancellor vide his order dated 08.07.2009 rejected therepresentation made by respondent No.4. The Chancellor in hisorder referred to the report sent by the University that experienceof the appellant as Senior Research fellow in W.H.O. cannot becounted as experience. Aggrieved by the order of the ChancellorDdated 08.07.2009 rejecting his claim, the respondent No.4 filed awrit petition being Writ Petition No.1350(SB) of 2009 praying forfollowing reliefs:- “i. Issue a writ of certiorari quashing the impugned order dated08.07.2009 passed by Opp. Party No.1 and impugnedappointment order dated 08.08.2005 of OPP. Party no.4 asAsstt. Professor contained in Annexure No.1 & 2 to thewrit petition.

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ii. issue a writ of mandamus / prohibition commanding the OPP.Party No. 1 to 3 to revert, back the OPP. Party NO.4 fromthe post of Asstt. Professor and post him in the post Lecturerfrom the date of joining forthwith.

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iii. issue a writ of mandamus commanding the Opp. Party No.1to 3 to declare the petitioner senior to the Opp. Party No.4with all consequential service benefits.

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iv. issue a writ of mandamus commanding the Opp. Parties tocount the period of Senior Research Fellow as teachingexperience in promoting the petitioner, as Asstt. Professor.

v. any other writ, order or direction which this Hon’ble Courtdeem fit in the circumstances of the case may also bepassed.

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vi. Allow the Writ Petition with cost.”

3.5 In the writ petition both the appellant as well as University hasfiled their counter affidavit and contested the claim of therespondent No.4. Division Bench of the High Court vide itsimpugned judgment dated 12.04.2018 allowed the writ petition.The operative portion of the order of the High Court is as follows:- “The writ petition is accordingly allowed. The order dated8.7.2009 passed by the Chancellor is hereby quashed and theUniversity concerned is directed to treat opposite party no.4having been appointed initially on the post of Lecturer inaccordance with his qualification. Consequences shall followaccordingly. However, no recovery shall be made from oppositeparty no.4 from the payment made to him on account of saidinitial appointment on the post of Assistant Professor.”

3.6 The appellant aggrieved by the judgment of the High Courthas come up in these appeals.

4. We have heard Ms. Meenakshi Arora, learned senior counselfor the appellant. Shri S.R. Singh, learned senior counsel appearing forrespondent No.4. Shri Vishnu Shankar Jain, learned counsel has appearedfor respondent No.3.

5. Learned counsel for the appellant contends that the appellanthad started working in the University as Assistant Professor in BRDMedical College from 19.07.2003 to 07.12.2005. It is submitted that priorto his deputation in BRD Medical College, Gorakhpur, he was a memberof Provincial Medical Services w.e.f. 01.09.1992 and had been workingfor more than a decade as Dental Surgeon. It is submitted that SelectionCommittee after considering the service experience and working of theappellant found him eligible for the post of Assistant Professor, andrecommended as Assistant Professor, who was appointed as such. It issubmitted that the respondent No.4 did not fulfil qualifications of AssistantProfessor since at the time of application, he had only one year’sexperience, hence, he rightly applied for the post of Lecturer only. It issubmitted that the appointment of the appellant as Assistant Professorwas never challenged by respondent No.4 and it is with regard to claimof seniority of respondent No.4 over the appellant he submitted hisrepresentation both to the University and the Chancellor. Representationto the Chancellor was also submitted after more than three years from A

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Athe appointment of the appellant and representations were submitted byrespondent No.4 only when he was promoted as Assistant Professor inthe year 2007. It is submitted that High Court committed error inentertaining the challenge to the appointment of appellant as AssistantProfessor whereas appointment was never challenged before theChancellor or within a reasonable period by the writ petition, which wasBfiled in the year 2009. The respondent No.4 cannot be permitted tochallenge the appointment of appellant after a period of more than fouryears. It is submitted that the appellant was senior to the respondentNo.4 right from the very beginning and the claim of respondent No.4regarding seniority of the appellant was misconceived and the disputeCwas initiated by respondent No.4 only for purpose of claiming himself tobe senior to the appellant. The appellant fulfilled the qualifications forappointment on the post of Assistant Professor and has been working onhis post since the date of joining.

6. Shri S.R. Singh, learned senior counsel appearing for theDrespondent No.4 submitted that the experience of the appellant asmember of Provincial Medical Services was wholly irrelevant for thepurpose of appointment on the post of Assistant Professor. At best, theappellant’s experience as Assistant Professor in BRD Medical College,Gorakhpur in Department of Dentistry from 19.07.2003 to 07.12.2005can be taken into consideration, which is only two years four monthsEand 19 days, which was less than three years, hence, he did not fulfil theeligibility for the appointment on the post of Assistant Professor. ShriS.R. Singh submitted that the appellant, who did not fulfil the eligibilityfor the post of Assistant Professor, his appointment on the post ofAssistant Professor was void and is nullity and the decision of the HighFCourt holding that respondent No.4 not eligible is correct, which needsno interference by this Court.7. We have considered the submissions of the learned counsel forthe parties and have perused the records.

8. For the post of Assistant Professor and Lecturer advertised byGadvertisement dated 15.03.2005 qualifications were referred to asqualifications required as in the first Statute of Lucknow University.Section 42 of the Act, 2002 provided for first Statutes of the University.The Section further provided that for so long as the First Statutes are notso made, the Statutes of the Lucknow University as in force immediatelyHbefore the appointed date in so far as they are not so inconsistent with the provisions of the Act, 2002, shall, subject to such adaptations andmodifications, continue in force. The relevant Statute of the LucknowUniversity, which provides for qualification for the post of AssistantProfessor is Statute 11.02 B2, which is to the following effect:- “11.02 B2. Assistant Professor: MDS or equivalent degree asrecognised by the Dental Council of India in the subject concernedwith at least three years teaching experience as Lecturer/ChiefResident/Senior Resident/ Demonstrator / Tutor or equivalent afterobtaining MDS degree in the subject concerned.

Provided that if suitable candidates with requisite teachingexperience are not available the selection committee mayrecommend candidates for appointment in lower grade i.e.Lecturers.”

9. There is no dispute to the fact that in pursuance of advertisementdated 15.03.2005 both appellant and respondent No.4 had appliedrespectively for the post of Assistant Professor and Lecturer and SelectionCommittee recommended their appointment and Executive Council inthe meeting dated 08.08.2005 approved the recommendations of SelectionCommittee appointing appellant as Assistant Professor and respondentNo.4 as Lecturer.

10. The University in its counter affidavit has relied and referredto Section 53 of the U.P. Act No. 8 of 2002. Section 53 of the Act, 2002is as follows:- “53- If any question arises whether any person has been dulyelected or appointed as, or is entitled to be a member of anyauthority or other body of the University (including any questionas to the validity of a Statute, Ordinance or Regulation, not beinga Statute or Ordinance made or approved by the StateGovernment or by the Chancellor) is in conformity with this Actor the Statutes or the Ordinances made thereunder, the mattershall be referred to the Chancellor, and the decision of theChancellor thereon shall be final:

Provided that no reference under this section shall be made- (a) more than three months after the date when the questioncould have been raised for the first time, A

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(b) by any person other than an authority or officer of theUniversity or a person aggrieved:

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Provided further that the Chancellor may in exceptionalcircumstances- (a) act suo motu or entertain a reference after the expiry ofBthe period mentioned in the preceding proviso, (b) where the matter referred relates to a dispute about theelection, and the eligibility of the persons so elected is in doubt,pass such orders of stay as he thinks just and expedient.”

C11. Section 53 provides that if any question arises whether anyperson has been duly elected or appointed, the matter shall be referredto the Chancellor, and the decision of the Chancellor thereon shall befinal. The Section also contains proviso to the effect that no reference inthis Section shall be made more than three months after the date whenquestion could have been raised for the first time. Although, by the secondDproviso, Chancellor can entertain a reference after expiry of the saidperiod. There is an object and purpose for entertaining any questionregarding appointment of member of any authority or body whether anyperson has been duly appointed within a period of three months. Themembers of the teaching faculty of the University be it Lecturer orEAssistant Professor are entrusted with teaching, which is to be impartedaccording to academic calendar. It is in the interest of the Universitythat all doubts regarding appointment of teachers are raised within aperiod of three months to have an early decision by Chancellor to givequietus to the disputes in the University.

F12. From the facts, which have been brought on record, it is clearthat the reference to the Chancellor was made by respondent No.4 onlyon 13.02.2009, i.e., subsequent to he was promoted as Assistant Professor.Chancellor in his order has noticed the substance of claim of respondentNo.4. Respondent No.4 has claimed to include the experience of SeniorResearch Fellow in W.H.O. The respondent No.4 has complained non-Gconsideration of experience as Senior Research Fellow with the W.H.O.in his experience for appointment on the post of Assistant Professor.Chancellor noticed the stand of the University with regard to claim ofrespondent No.4 to include his experience as Senior Research Fellow inW.H.O. and made following observations:- H

“The University has informed that the experience of Dr. Rao forhis service with the WHO as Senior Research fellow in theteaching experience was not considered for the appointment onthe post of Assistant Professor because there is no such schemein the bylaws. The applications sent by Dr. Rao time to time hadbeen disposed off. The university has also informed that case ofDr. Amit Nagar and Dr. G.K. Singh has no similarity with thecase of the complainant and the case of Dr. Nagar is different.

At the end the statement of the university is that Dr. Rao haspresented applications without knowing the truth of the factsmentioned therein and that through unauthorised manner and sincethe above case of Dr. Rao is meritless, having no force and basedon the false facts and causing disillusion hence it has beenrequested to reject the complaint.”

13. The Chancellor has further observed that the respondent No.4has mainly requested to establish his seniority over the appellant. In thelast paragraph of the order, Chancellor has made following observations:-

“The respondent has mainly requested to establish his seniorityagainst the respondent Dr. Puran Chand and has mainly statedthat his experience as Senior Research Fellow with Governmentof India and WHO has not been counted as experience by theMedical University. In the report sent by the vice chancellor ofthe Chhatrapati Shahu Ji Maharaj Medical University, Lucknowin this regard, it has been clarified that in section 10.01 (A) of theFirst bylaws of the Lucknow University which has been currentlymade applicable to the Medical University also there is no provisionfor considering the services done with WHO as Senior ResearchFellow. The reason given by the university is as per the law andthe present application lacking force is rejected.”

14. The copy of the complaint to the Chancellor which was filedon behalf of respondent No.4 has not been brought by the respondentNo.4 on the record, but after perusal of the order of the Chancellor, themain grievance of the respondent No.4 was non-inclusion of his teachingexperience, as Senior Research Fellow in W.H.O. and his claim ofseniority over the appellant. The respondent No.4 has filed a counteraffidavit in this appeal where in paragraph No.9, following has beenpleaded by respondent No.4:- AB

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A“9. That in respect of the seniority between the answeringrespondent and Dr. Pooran Chand, a representation was submittedby the answering respondent before the University; but the samewas not considered and as such the answering respondentapproached the Hon’ble Chancellor as per the provisions of Section68 of the State Universities Act, 1973.”B

15. From the facts as noticed above and the pleadings of therespondent No.4 in paragraph 9 of his counter affidavit, it is clear thatthe respondent No.4 had submitted his representation to the Chancellorregarding seniority over the appellant and the appellant’s appointment asAssistant Professor w.e.f. 08.08.2005 was not challenged. RespondentCNo.4 wanted that his experience as Senior Research Fellow in W.H.O.be also included, which was not acceded to. Section 53 of the Act, 2002as noticed above when provides that any dispute regarding appointmentin the University has to be raised within a period of three months, therespondent No.4 could not have raised any challenge to the appointmentDof appellant after lapse of more than three years. The Chancellorconsidered the representation of the respondent No.4 and decided it onmerits, since the Chancellor was of the view that the claim is essentiallyof seniority by respondent No.4 over the appellant.

16. We, thus, are of the view that the appointment of appellant asEAssistant Professor, which is approved on 08.08.2005 was not challengedor questioned by respondent No.4 in accordance with provisions of theAct, 2002. Although, in the writ petition filed by respondent No.4, he hasmade a prayer for quashing the appointment order dated 08.08.2005 ofthe appellant as Assistant Professor but we are of the view that theappointment of appellant as Assistant Professor having not beenFchallenged before the Chancellor, he could not have been permitted tochallenge the appointment of appellant. Appointment dated 08.08.2005could not be allowed to be challenged after four years in the writ petition.

17. Learned counsel for the appellant is right in her submissionthat it was after respondent No.4 was promoted as Assistant Professor,Ghe submitted representations and claimed before the Chancellor seniorityover the appellant. In the counter affidavit filed by the University, detailsof the representations, which were given by respondent No.4 to theChancellor have also been mentioned in paragraph 2.9, which are to thefollowing effect:-H

“2.9 That Dr. Jitendra Kumar Rao preferred a representation toHis Excellency, the Chancellor of K.G.M.U. on 13.02.2009 withthe following prayer:-

(a) My seniority in the department as Assistant Professor maybe looked at.

(b) The seniority of Dr. Pooran Chand may be reverted backas per rules.

(c) If some conspiracy to hide the facts in the appointment ofDr. Pooran Chand is proved, then an appropriate action shouldbe taken against concern person.”

18. The prayer of the respondent No.4 that appellant should bereverted on the post of Lecturer could not have been entertained. Thereis no question of reversion of the appellant on the post of Lecturer whenhe was appointed as Assistant Professor on 08.08.2005.

19. Now, we may notice the judgments, which have been reliedby learned counsel appearing for respondent No.4 in support of hissubmissions. Learned counsel for the respondent No.4 has placedreliance on judgment of this Court in Nagendra Chandra and Ors. Vs.State of Jharkhand and Ors., (2008) 1 SCC 798. The above caserelated to the appointment on the vacancy for the post of Constables.The vacancies were neither advertised through the Employment Exchangenor in a newspaper, which was a requirement of Rule 663(d) of BiharPolice Manual but was displayed only on the notice board. The appellantsof the said case, who were appointed without advertisement of thevacancy, were dismissed from service. The writ petition was filed, whichtoo was dismissed. Challenging the order of the High Court, the appealwas filed before this Court. Paragraph 3 of the judgment notices thesubmissions, which is to the following effect:- “3. Learned counsel appearing on behalf of the appellantssubmitted that though the vacancies were neither advertisedthrough the employment exchange nor in any newspaper, asrequired under Rule 663(d) of the Bihar Police Manual, but as thesame were displayed on the noticeboard, it cannot be said thatthere was infraction of the said Rule; as such the services of theappellants should not have been terminated, more so when theyhave continued in service for a period of fourteen years. On the A

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other hand, learned counsel appearing on behalf of the State ofJharkhand submitted that as the appointments, being in infractionof Rule 663(d), were illegal, the competent authority was quitejustified in terminating services of the appellants.”

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20. In paragraph 9 of the said judgment, this Court laid downBfollowing:- “9. In view of the foregoing discussion, we have no option but tohold that if an appointment is made in infraction of the recruitmentrules, the same would be violative of Articles 14 and 16 of theConstitution and being nullity would be liable to be cancelled. InCthe present case, as the vacancies were not advertised in thenewspapers, the appointments made were not only in infractionof Rule 663(d) of the Bihar Police Manual but also violative ofArticles 14 and 16 of the Constitution, which rendered theappointments of the appellants as illegal; as such the competentauthority was quite justified in terminating their services and theDHigh Court, by the impugned order, was quite justified in upholdingthe same.”

21. There cannot be any dispute to the preposition that when theappointment is made in infraction of the recruitment rules, the samewould be liable to be cancelled. The present is not a case whereEappointment of appellant was cancelled by any competent authority. Theappellant was appointed, recommended by Selection Committee withdue approval of the Executive Council and the appointment was madeafter due advertisement. The above judgment, thus, is distinguishableand does not help the respondent No.4.F

22. Another judgment relied by learned counsel for the respondentNo.4 is Government of Andhra Pradesh and Ors. Vs. K.Brahmanandam and Ors., (2008) 5 SCC 241, which was a casewhere management neither obtained the prior permission of schoolauthorities nor advertised the vacancy in two newspapers and madeGappointment. The appointees, i.e., Secondary Grade Teachers filedrepresentations for their salary, which was rejected by the DistrictEducation Officer. A writ petition was filed, which petition was alloweddirecting for their continuance. In the appeal filed by the State, thejudgment of the High Court was set aside. This Court held that theappointments made in violation of the mandatory provisions of a StatuteH

would be illegal and, thus, void. There can be no dispute to the abovepreposition but the above was a case where the appointment of theteachers were neither approved nor was made in accordance with thestatutory rules, hence, this Court took the view that they are not entitledfor any salary from the State and it was school authorities to pay theirsalary.

23. Another judgment relied by the learned counsel for therespondent No.4 is Pramod Kumar Vs. U.P. Secondary EducationServices Commission and Ors., (2008) 7 SCC 153, which was alsoa case of a teacher, who had obtained B.Ed. degree from an institution,which was not recognised. He was appointed by the ManagementCommittee and filed a writ petition for his salary, his services wereterminated. He filed a writ petition, which was dismissed, against whichappeal was also dismissed. This Court in paragraph 21 made followingobservations:- “21. It is not in dispute that the said institution was not recognisedby any university. A degree is recognised only if it is granted by auniversity constituted in terms of the University Grants CommissionAct, 1956 or under any State or parliamentary Act. No universitycan be established by a private management without any statutorybacking.”

24. This Court dismissed the appeal filed by the teachers. Theabove case was also on different premise and does not help therespondent No.4.

25. Appellant has also placed reliance on judgment of this Courtin State of Jammu and Kashmir Vs. R.K. Zalpuri and Ors., (2015)15 SCC 602 where writ petion was filed challenging the dismissal orderafter six year. The writ petitoin was allowed by the learned Single Judgeagainst which LPA by the State was also dismissed. This Court allowedthe appeal and held that delay in approaching High Court under Article226 was fatal in the above case. In paragraphs 26 and 27 following waslaid down:- “26. In the case at hand, the employee was dismissed from servicein the year 1999, but he chose not to avail any departmentalremedy. He woke up from his slumber to knock at the doors ofthe High Court after a lapse of five years. The staleness of the A

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Aclaim remained stale and it could not have been allowed to riselike a phoenix by the writ court.

27. The grievance agitated by the respondent did not deserve tobe addressed on merits, for doctrine of delay and laches hadalready visited his claim like the chill of death which does notBspare anyone even the one who fosters the idea and nurtures theattitude that he can sleep to avoid death and eventually proclaim“deo gratias”—”thanks to God”.”

26. As observed above, the Act which Governs the appointmentof Assistant Professors and Lecturers in the University itself provides aCmechanism for questioning an appointment, i.e., by representation to theChancellor that too within a period of three months. Any challenge toappointment after more than three years cannot be entertained as wehave already held that respondent No.4 in his representation before theChancellor never challenged the appointment of appellant as AssistantProfessor and had filed representation only claiming seniority overDappellant after he got promoted as Assistant Professor himself in theyear 2007, High Court ought not to have entertained the challenge to theappointment of appellant in the writ petition and ought to have confinedthe consideration of claim of respondent No.4 for seniority over theappellant. When the appointment of appellant was not challenged inEreasonable time as per the provisions of the Act, 2002, it is not in theends of justice to permit the respondent No.4 to challenge suchappointment in the High Court in the writ petition for the first time, aftermore than four years of the appointment.

27. We, thus, are of the considered opinion that High CourtFcommitted an error in quashing the appointment of respondent No.4 asAssistant Professor, quashing the order of the Chancellor as well asdirection to treat the appellant as being appointed as a Lecturer. Therewas no error in the order of the Chancellor rejecting the representationmade by the respondent No.4, which representation was referable toSection 53 of Act No. 8 of 2002. High Court committed error in quashingGthe order as well as issuing directions as noted above.

28. In view of the foregoing discussions, we allow the appealsand set aside the judgment of the High Court dated 12.04.2018 anddismiss the writ petition filed by respondent No.4.

HDevika Gujral