Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

(Arising out of SLP (C) NO. 26763 OF 2015)
DINESH CHANDRA SHUKLA                                      …APPELLANT(S)
STATE OF U.P. & ORS.                  …RESPONDENT(S)
1. Aggrieved by the dismissal of his writ petition seeking to quash
an order of the Chancellor of the Mahatma Gandhi Kashi Vidyapeeth
University (hereinafter referred to as ‘the University’), rejecting his
request to be appointed as Lecturer (Karm Kand), the appellant is
before this Court.
2. We have heard the learned counsel for the appellant, the learned
counsel appearing for the Chancellor of the University, the learned
counsel for University itself and the learned standing counsel for the
3. The brief facts necessary for the disposal of the above appeal are
as follows:­
(i) Vide order dated 22.10.1996, the State of U.P sanctioned
one post of Lecturer in ‘Karm Kand’ in the Department of
Sanskrit   in   the   University,   which   is   arrayed   as   the   5th
respondent herein.   The Chancellor of the University, the
Executive Council and the Vice Chancellor of the University
are arrayed separately as respondents 2 to 4 herein for
reasons not difficult to fathom.
(ii) It appears that one Shri Jai Prakash Pandey was initially
appointed   to   the   said   post   and   his   services   were   also
regularised. But the regularisation of his services was set
aside by the High Court by an order dated 19.08.2006 in
Writ Petition No.35149 of 1999.
(iii) Thereafter,   the   appellant   herein   was   engaged   by   the
University as a Guest Lecturer to teach ‘Karm Kand’ to the
students in the Department of Sanskrit. The remuneration
payable to him was fixed at Rs.250/­ per lecture subject to
a maximum of Rs.5,000/­ per month.
(iv) A   proposal   to   fill   up   the   post   on   regular   basis   was
submitted by the Head of the Department of Sanskrit on
16.10.2006.   It   was   approved   by   the   Vice­Chancellor   on
18.10.2006.   Pursuant   thereto,   the   University   issued   an
advertisement bearing Advertisement No.2 of 2006, inviting
applications   for   appointment   to   one   post   of   Lecturer   in
‘Karm Kand’. The advertisement also contained invitation
for   applications   for   various   other   posts   in   various
departments. We are not concerned in this case with the
posts   in   other   departments   for   which   applications   were
invited in the same advertisement. Suffice it to say that
applications   were   invited   for   appointment   to   8   posts   of
lecturers   in   various   subjects,   one   of   which   was   for
appointment to the post of Lecturer in ‘Karm Kand’.
(v) Unfortunately,   a   controversy   erupted,   when   the   then
Chancellor of the University issued an oral order restraining
the   Vice­Chancellor   from   convening   the   meetings   of
Selection   Committees   pursuant   to   the   aforesaid
advertisement, on the ground that the Vice­Chancellor was
due to retire on 31.12.2007. But the High Court, by an
order dated 04.10.2007 passed in a writ petition, made it
clear   that   statutory   functions   performed   by   the   Vice
Chancellor cannot be put on hold by oral orders of the
Chancellor. Thereafter, a written order was issued by the
Chancellor   on   14.12.2007.   However,   the   said   order   was
challenged in another writ petition and the same was stayed
by   the   Allahabad   High   Court,   paving   the   way   for   the
Selection Committees to proceed further pursuant to the
Advertisement No.2 of 2006.
(vi) As a consequence, the Selection Committees in respect of
various posts held meetings and made recommendations.
Some   of   these   recommendations   were   accepted   by   the
Executive Council by its Resolution dated 24.12.2007.  
(vii) Since the Vice­Chancellor retired in the meantime before
the recommendations were implemented, a batch of writ
petitions came to be filed. A spate of interim orders came to
be passed pursuant to which the Executive Council decided
to refer the recommendations of the Selection Committees
to the Chancellor under the proviso to Section 31(8)(a) of
the U.P. State Universities Act, 1973.
(viii) In the case of the appellant, the Selection Committee had
recommended his candidature for appointment to the post
of   Lecturer   in   ‘Karm   Kand’.   But   the   Executive   Council
disagreed with the Selection Committee on the ground that
the   Vice­Chancellor   failed   to   request   the   Chancellor   to
nominate subject experts in the Selection Committee. It is
relevant   to   note   here   that   the   Selection   Committee
shortlisted   only   two   persons,   one   of   whom   was   the
appellant and other Dr. Jai Prakash Pandey. The said Dr.
Jai   Prakash   Pandey   had   secured   only   49.2%   marks   as
against the minimum prescription. Therefore, he was not
issued with any interview call letter.
(ix) Agreeing with the decision of the Executive Council, the
Chancellor passed an order dated 23/28.12.2010 annulling
the recommendation made by the Selection Committee for
the appointment of the appellant.
(x) The appellant challenged the said order of the Chancellor by
way of a writ petition in Writ Petition No.6389 of 2011. By
an   Order   dated   02.12.2011,   the   said   writ   petition   was
allowed and the matter remanded back to the Chancellor.
The   reason   why   the   matter   was   remanded   back   to   the
Chancellor was that admittedly there was no University in
the country awarding a post graduate degree in ‘Karm Kand’
and that, therefore, there were actually no experts in the
subject of ‘Karm Kand’, as sought to be projected by the
Chancellor.   Since   the   question   whether   subject   experts
were at all available in the field of ‘Karm Kand’ went to the
root of the matter, the High Court thought fit to remand the
matter back to the Chancellor.
(xi) Pursuant   to   the   aforesaid   direction,   the   Chancellor
considered   the   matter   and   passed   a   fresh   order   dated
24.08.2012, rejecting the recommendation of the Selection
Committee. This order was challenged by the appellant by
way of a fresh writ petition in Writ Petition No.63137 of
2012. By the  Order dated 14.05.2015 impugned in  this
appeal, the Division Bench of the Allahabad High Court
dismissed the writ petition of the appellant on the ground
that   after   the   order   of   remand,   the   Chancellor   had
consulted a few experts and found that the subject of ‘Karm
Kand’ is altogether different from the subject Sanskrit and
that   therefore,  with   the   qualifications   that   the   appellant
possessed,   he   could   not   have   been   selected   for
appointment. It is against this order of the High Court that
the appellant is before us.
4. Before   we   proceed   to   consider   the   core   issue   arising   for
consideration, we are obliged to take note of the fact that admittedly
the appellant was engaged as a Guest Lecturer on remuneration of
Rs.250/­ per lecture subject to a maximum of Rs.5000/­ per month
from the year 2006. Ever since then the appellant has been teaching
students undergoing a one year diploma course in ‘Karm Kand’ for the
past nearly 16 years.
5. The next thing we have to take note of before we take up for
consideration   the   issue   arising   in   the   above   appeal,   is   that   the
appellant, and perhaps the entire selection process undertaken in
2006 by the University, became victims of the crossfire between the
Chancellor   and   the   Vice­Chancellor.   Admittedly,   the   post   was
originally filled up by a person who was actually the  purohit  to the
then Governor of State of Uttar Pradesh.  But his appointment was set
aside by Allahabad High Court by an order dated 19.08.2006. It is
only thereafter that Advertisement No.2 of 2006 came to be issued,
inviting applications for appointment to the post.
6. But it is of interest to note that the advertisement did not specify
particularly that a candidate applying for the post of Lecturer in ‘Karm
Kand’ should hold a Master’s Degree in ‘Karm Kand’. In fact the order
of the Chancellor dated 24.08.2012 which became the subject matter
of   the   writ   petition,   specifically   concedes   as   follows:  “there   is   no
mention of the subject Karm Kand in the Statutes of the Mahatma
Gandhi Kashi Vidyapeeth nor any Ordinance under Section 51/52 nor
any Regulations 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 the minimum
qualifications required for appointment to the post of Lecturer in the
University or a Master’s Degree or equivalent degree in relevant subject
with at least 55% marks and consistently good academic record and
NET or Ph.D. degree”.
7. In   his   order   dated   24.08.2012,   the   Chancellor   held   that   the
appellant did not hold a Master’s degree in ‘Karm Kand’. But before he
came to such a conclusion, the Chancellor as well as the High Court
ought to have verified (i) whether the Statutes prescribed any specific
qualifications necessary for appointment to the post of Lecturer in
‘Karm Kand’; and  (ii)  if not, what should be considered as “relevant
subject and by whom”.
8. It must be pointed out at this stage that in the first instance, the
Executive Council took a stand that the selection of the appellant was
vitiated primarily on account of non­inclusion of subject experts in the
field of ‘Karm Kand’. The appellant was not held by the Executive
Council to be a person not possessing the prescribed qualifications for
appointment.   This is why the order of remand passed by the High
Court on 02.12.2011 specifically directed the Chancellor to consider
whether   or   not   there   were   subject   experts   in   ‘Karm   Kand’   to   be
included in the Selection Committee. Instead of confining himself to
the said question, the Chancellor seems to have taken the opinion of
one Professor Gaya Ram Pandey, Head of the Department of Sanskrit
to come to the conclusion that ‘Karm Kand’ and Sanskrit are two
separate subjects and that while ‘Karm Kand’ is a practical subject,
Sanskrit is not. The said Professor Gaya Ram Pandey also seems to
have provided information to the effect (i) that a few universities such
as   Banaras   Hindu   University,   Sampurnanand   Sanskrit   University,
Lucknow University, and Lal Bahadur Shashtri Rashtriya Sanskrit
Vidyapeeth have included ‘Karm Kand’ as a subject in their courses;
and (ii)  that, however, according to the information from the Registrar
of Lal Bahadur Shashtri Rashtriya Sanskrit Vidyapeeth, there is no
post of Lecturer in ‘Karm Kand’. In his order dated 24.08.2012 the
Chancellor also recorded that certain universities teach the subject of
Karm Kand/Paurohitya and provide degrees like Acharya (M.A) and
Vidyavaridhi (Ph.D.).
9. Obviously the consultations made by the Chancellor with certain
persons and the information gathered by him before passing the order
impugned before the High Court, were beyond the scope of order of
remand passed by the High Court. The information collected by the
Chancellor not only enlarged his original objections to the selection of
the appellant but was also gathered behind the back of the appellant. 
10. In the course of hearing of the above appeal, we raised a pointed
query to Shri Sandeep D. Das, learned counsel appearing for the
University as to whether the Statutes of University prescribed any
specific qualifications for appointment to the post of Lecturer in ‘Karm
Kand’ or at least whether Advertisement No.2 of 2006 indicated the
qualifications. He had no alternative but to concede that the statutes
do  not  contain  any prescription  regarding the  post of  Lecturer in
‘Karm Kand’. He also conceded that the advertisement did not indicate
any specific qualification except that the aspirant should hold a post
graduate degree in the relevant subject.
11. In the absence of any specific prescription, the University ought
to have referred the question of what constitutes relevant subjects,
before the process of selection began. Neither the University nor the
Chancellor took a stand in the first instance that the appellant was
not qualified in the “relevant subject”. Their initial objection was that
the   Selection   Committee   did   not   include   the   subject   experts
nominated by the Chancellor. After it was pointed out that there were
no subject experts in ‘Karm Kand’, as no University was offering a
specific course in ‘Karm Kand’, the High Court thought fit to remand
the   matter   back   to   the   Chancellor,   to   ascertain   whether   subject
experts were actually available and whether the failure of the Vice
Chancellor to seek nomination of such experts from the Chancellor
vitiated   the   whole   process.   Finding   that   the   answer   to   the   said
question was too difficult to be provided, the Chancellor went on a
detour to find out what are the differences between the subject of
Sanskrit and the subject of ‘Karm Kand’. This was clearly erroneous
and the High Court unfortunately omitted to notice this mistake.  
12. Admittedly, the appellant has been teaching ‘Karm Kand’ for the
past   nearly   16   years  in   the  same  University.   Though   the   learned
counsel for the University stated that his continuance was on account
of an interim order of status quo passed by this Court, we notice that
the   interim   order   of   status   quo   was   passed   only   on   14.09.2015.
Unless the appellant was continuing as on that date, the order of
status quo would have meant nothing for him.
13. The parameters to be applied to a case where an incumbent to a
post   does   not   fulfil   the   qualifications   prescribed   for   a   post,   are
different from the parameters to be applied to a case where no specific
qualifications are prescribed for a particular post. The question as to
what   constitutes  “relevant   subject”  should   have   been   left   to   the
experts, before  the  advertisement   was  issued,  especially  when  the
statutes did not 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 entire controversy appears to have arisen as a result of the tug of
war in the year 2006 between the then Chancellor and the then Vice
Chancellor,   making   the   appellant   a   victim   in   the   line   of   fire.
Unfortunately, the High Court omitted to take note of all this.
14. The   expression   “equivalent   qualifications”   has   a   different
connotation   than   the   expression   “relevant   subject”.     In  Punjab
University  vs.  Narinder   Kumar   and   Others1
,   this   Court   was
concerned with the interpretation of the expression “relevant subject”.
But in that case the advertisement itself prescribed “the  essential
1 (1999) 9 SCC 8
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 subjects for the post of a Lecturer in any specified
subject, the column dealing with “desirable qualifications” threw light
upon what was relevant.  Therefore, cases in which a clue is available
in the advertisement itself may stand on a different footing than cases
where there is no such clue.
15. In  Ganapath   Singh   Gangaram   Singh   Rajput  vs.  Gulbarga
, this Court was concerned with a case where applications
were invited for appointment to the post of Lecturer in MCA, from
candidates holding a post graduate degree in the “relevant subject”.
As a matter of fact, this Court found that candidates with Masters’
degree in Computer Applications were available, but a candidate with
Masters’ degree in Mathematics was selected.  This Court found fault
with   the   decision   of   the   Board   of   Appointment   in   selecting   the
candidate   with   a   Master’s   degree   in   Mathematics   with   a   flawed
reasoning that Mathematics is one of the subjects taught in MCA.  
2 (2014) 3 SCC 767
16. In the case on hand no candidate was available with a post
graduate degree in ‘Karm Kand’ and the Selection Committee which
comprised of a representative of the Department of Sanskrit found the
appellant to possess a Master’s degree in the relevant subject.   The
appointment itself was to the post in the Department of Sanskrit.
17. In fact, during the pendency of the writ petition before the High
Court,  the  Academic  Council  of   the  University  held  a  meeting  on
22.08.2013.   Agenda   No.10   for   the   said   meeting   related   to   the
qualifications for appointment to the post of Lecturer in ‘Karm Kand’.
The recommendation made by the Head of the Department of Sanskrit
was accepted by the Academic Council.  Agenda Item No.10 of the said
meeting of the Academic Council reads as follows:
“Agenda No.10: Recommendations  of Department of
Sanskrit.     Prof   Uma   Rani   Tripathi   Head   of   the
Department,   Department   of   Sanskrit   gave   the
information   related   to   the   recommendation   of   the
Department of Sanskrit by apprising that the Academic
Qualification   of   the   Karm   Kand   and   for   the   post   of
Professor of Sanskrit be kept one and the same as well
as   the   Specialized   experience   of   karm   kand   be
stipulated   as   compulsory   which   was   passed
18. If   only   the   High   Court   had   looked   into   the   minutes   of   the
meetings of the Academic Council it could have easily appreciated that
the appellant was entitled to succeed.
19. Under Section 25(1)(c) of the U.P. University Act, the Academic
Council is empowered to advise the Executive Council with regard to
the   qualifications   required   to   be   possessed   by   persons   imparting
instructions on particular subjects.   Therefore, the minutes of the
meetings of the Academic Council dated 22.08.2013 has clinched the
issue in favour of the appellant.  Hence it is time for the University to
put an end to this ‘Yuddh Kand’ and allow the appellant to move from
‘Karm Kand’ to ‘Karm Phal Kand’.
20. Therefore, the appeal is allowed, the impugned order of the High
Court is set aside and the writ petition filed by the appellant before the
High Court is allowed, as prayed for. In view of the fact  (i)  that the
appellant has been teaching the very same subject for the past nearly
16 years; and (ii) that the original Selection Committee which found
him   eligible   for   appointment,   comprised   of   Professors   from   the
Department of Sanskrit of which the diploma course in ‘Karm Kand’
was a part, a direction is issued to the 5th  respondent­University to
regularise the services of the appellant.  There shall be no order as to
(Hemant Gupta)
(V. Ramasubramanian)
New Delhi
March  24, 2022.


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