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PETITIONER: THE COMMITTEE OF MANAGEMENT, VASANTA COLLEGE FOR WOMEN

       Vs.

RESPONDENT: TRIBHUWAN NATH TRIPATHI & ORS.

DATE OF JUDGMENT:       21/11/1996

BENCH: N.P. SINGH, SUHAS C. SEN

ACT:

HEADNOTE:

JUDGMENT:                THE 21ST DAY OF NOVEMBER, 1996 Present :                Hon‘ble Mr. Justice N.P.Singh                Hon‘ble Mr. Justice Suhas C.Sen      A.K.Chitale, Sr.  Adv., Niraj Sharma, Adv. with him for the appellant      S.K.  Gupta,   and  Anil   Kumar  Jha,  Advs.  for  the Respondents                       J U D G M E N T      The following Judgment of the Court was delivered: SEN, J.      Leave granted.      Vasanta College  for Women,  Rajghat Fort, Varanasi, is an educational  institution run  by and under the control of Krishnamurthi Foundation  India. The  post  of  Lecturer  in English fell  vacant in  the College.  An advertisement  was issued by the College on 12.8.1989 in a number of newspapers inviting  applications   for  the   post.  The   eligibility requirement for  the post  according to  the  advertisement, was:      (a)  A good  academic record and at least a high Second           Division in  the Master‘s  Degree in  the relevant           subject from a recognised University.      (b)  A Doctorate  or M.Phil.  Degree or  an  equivalent           published work  showing an  ability to  carry  out           independent  research   work.  DESIRABLE:  A  good           working knowledge of Hindi and English. Tribhuwan Nath  Tripathi was  one of  the candidates for the post. Tripathi had a Master‘s Degree in English, but did not have any  Doctorate or  M.Phil Degree.  Tripathi had a claim that the had registered himself for Ph.D. in March, 19986 on the  research   topic  "Non-Romanticism  in  Modern  British Poetry". He had several publications and books to his credit which were as under:-           Publications:      (i) Research Papers      (a)    "Romanticisim    and    Neo-           Romanticism".      (Accepted for publication)      (b)  "Surrealism  and  the  English

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         Neo-Romantics"      (Accepted for publication)      (c)  "Treatment   of  Love  in  the      Poetry of David Gascoyne"      (Sent for publication)      (d) "Nature  in the  Hands of Dylan           Thoman"      (Under publication)      (ii) Books      Learning English      PartIV                  (1987)      PartIII                 (1988)      PartIV                  (1988)      PartV                   (1988)      (Bharati Pustak Mandir, Calcutta)      A Selection  Committee was constituted to interview the candidates.  The   Selection  Committee   comprised  of  two external expert  members and  two representatives of Banaras Hindu University  - One  was an  expert in  the subject  for which interview  was conducted  and  the  other  expert  was nominee of  the University,  who may or may not be an expert in the  subject. But,  when the  interview by  the Selection Committee was  held on 8.11.1989, the two representatives of BHU failed  to  turn  up.  The  other  two  members  of  the Selection Committee,  however, proceeded  with the interview and selected  Tripathi for  the post of Lecturer in English. After the  Selection Committee had selected Tripathi for the post of  Lecturer in  English, the  Manager of  the  College wrote a  letter dated  10.11.1989 to the Deputy Registrar of the BHU,  asking him  to seek  the  approval  of  the  Vice- Chanceller to  ad hoc  appintment of Tripathi as Lecturer in English with  effect from  the date  he  took  over  charge. Officer on  Special Duty (Acad. & Exams.) of the BHU wrote a letter dated 23rd December, 1989 seeking clarification as to why the appointment letter issued to Tripathi mentioned that he had  been offered ad hoc appointment as Lecturer only and further continuation  had  been  made  conditional.  It  was pointed out  that the  Selection Committee  had  recommended Tripathi  for  appointment  as  a  Lecturer.  The  Selection Committee had  also mentioned  that Tripathi‘s research work and  publications  were  assessed  equivalent  to  Ph.D.  On January 8,  1990, the  Manager of the College replied to the letter dated 23rd December, 1989:-      "You will  recall that the Managing      Committee  of   our   College   had      requested   the    Banaras    Hindu      University to permit them to invite      one   expert   from   outside   for      selection of  Lecturers.  This  was      approved by  the Executive  Council      of the  BHU and  made applicable to      all   the    affiliated   colleges.      Accordingly we  have been  inviting      external experts  out of  the panel      of names  supplied to us by the BHU      for  this   purpose.  Our  Managing      Committee has  resolved as a policy      matter that  permanent appointments      should  be   made  only  when  both      experts   are    present   in   the      selection.  Temporary   or  ad  hoc      appointments can  be made even when      one of  the experts  is absent.  In      this  case   we  had   invited  two      external experts  for the Selection

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    Committee but  both were  unable to      turn  up   on  account  of  certain      disturbances in  the city  in spite      of    having     conveyed     their      acceptance.     Therefore,      the      selection was  held only  with  the      University nominee  and one subject      expert  in   the   committee.   The      candidate selected  did not  have a      Ph.D.  and   had  stated   in   the      interview  that   he  has   started      writing  his  thesis  and  will  be      completing his  Ph.D.  shortly.  In      view of  the above  facts, we  have      decided to offer Shri T.N. Tripathi      an ad  hoc appointment and this has      also   been    approved   by    the      University."      It may  be mentioned  that Tripathi had been offered an ad hoc  appointment by  the Manager by letter dated 18.11.89 which was accepted by Tripathi by a letter dated 27.11.89 in which he pointed out that the was not a candidate for ad hoc appointment and  there must  have been  some  mistake  which should be  clarified. It  was stated by Tripathi that he was the only  candidate with  published work  in English Grammar and had  appeared before  the Selection Committee. He was an aspirant for the permanent post. He requested the college to allow him  to wait  for the  result of the interview for the permanent post.      On  29.11.89   the  Manager  of  the  College  informed Tripathi in  writing that the post against which he had been appointed was  a permanent  post, but  temporary appointment was offered as he had not completed his M.Phil/Ph.D. Degree. He further wrote:-      "You had mentioned in the interview      that you  are  writing  your  Ph.D.      thesis and  will be  submitting  it      shortly. You will be considered for      a   permanent   appointment   after      successful   completion   of   your      Ph.D."      Tripathi was  asked to join duty latest by December 15, 1990 failing  which it  would be  presumed that  he was  not interested in  accepting the  offer. On  the December, 1989, the Deputy  Registrar of  BHU informed  the Manager  of  the College  that  ad  hoc  appointment  of  Tripathi  had  been sanctioned. On  12th  December,  1989,  Tripathi  joined  as Lecturer in English on ad hoc basis. On 23rd December, 1989, O.P. Tandon,  an Officer  special Duty at BHU pointed out to the  Manager   of  the   College  that   Tripathi  had  been recommended by  the Selection  Committee for  appointment as Lecturer  in  English.  The  appointment  letter  issued  to Tripathi  mentioned   that  the  had  been  offered  ad  hoc appointment as  Lecturer until  30th April, 1990 and further continuation had  been made  conditional. The proceedings of the Selection  Committee also  mentioned that  "his research work and  publications are  assessed equivalent to Ph.D." In view of  that what  had been  stated above, it was not clear why Tripathi  was not  appointed on  probation  and  instead given ad  hoc appointment.  On 4th January, 1990, management of the college passed a resolution for permanent appointment of Anita  Singh and  for ad  hoc appointment  of  respondent although only  one expert was present at the meeting. On 8th January, 1990,  it was  pointed out on behalf of the college in reply  to the  University‘s letter  dated 23rd  December,

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1989 that  due to  the  absence  of  one  expert,  permanent appointment could  not be  given to Tripathi. On 27th March, 1990, Tripathi  sought permanent  appointment and  explained that delay in getting the Ph.D. thesis paper.      On 1st  may, 1990,  the period of ad hoc appointment of Tripathi was  extended upto  31st October, 1990 or permanent appointment whichever  was earlier. On 20th April, 1990, the University had  issued  a  certificate  that  pre-submission seminar of  Tripathi‘s Ph.D. thesis had been held. A copy of the certificate  had been  forwarded to  the management.  On 16th July,  1990, Tripathi  filed a  writ  petition  in  the Allahabad  High   Court  seeking  a  writ  of  Mandamus  for permanent appointment  and also an order against termination of his  service. On  behalf  of  the  appellant-College,  an advertisement was  given in  Employment  News  dated  25-31, August, 1990  inviting applications  for permanent Lecturers in   English,    Geography   and   History.   The   required qualification  was,   at   least   a   high   second   class M.Phil./Ph.D. or  equivalent published  work indicating  the candidate‘s capacity  in independent  research work.  It was stated in  the advertisement  that if  no suitable candidate with M.Phil./Ph.D.  was available,  a  candidate  with  good academic record  with at least two years‘ research/practical experience may  be appointed  on the  condition that  he/she will have  to complete  the  Ph.D.  within  eight  years  of appointment.      On 5th  October, 1990, Tripathi informed the management of the  College that  he had completed the research work and his thesis  had been  submitted on  4th October,  1990 and a certificate  of  University  was  enclosed,  Thereupon,  the management of the College sent him an interview call letter, But, Tripathi  did  apply  for  the  post  pursuant  to  the advertisement nor  did he turn up for the interview. But, he filed a  second writ  petition No.  32900/90 challenging the advertisement dated  31st August, 1990. This was followed by a letter to the management not hold any selection in view of the pendency  of the  writ petition.  No interim  order  was passed by  the Court.  On 29th  December, 1990, Madhu Kapoor was appointed  Lecturer in  English as a probationer. On 2nd January,  1992,   her  appointment  was  confirmed.  On  the October, 1993,  Madhu Kapoor  gave a  three months notice of resignation. On  9th October, 1993, management directed that Madhu Kapoor  gave a  three months notice of resignation. On 9th October,  1993, management directed that Madhu Kapoor be relieved with  effect  from  the  January,  1994  and  fresh advertisement was  issued  in  Employment  News  dated  6-12 November, 1993 inviting applications to the post of lecturer in English.  On 11th  January, 1994,  the High  Court on the application of  Tripathi passed  an interim  order that  any selection or  appointment  shall  be  subject  to  the  writ petitions  filed  by  Tripathi.  Tripathi  claimed  that  in january, 1991,  he had obtained a Ph.D. degree from BHU. The title of  his thesis  was "Neo-Romanticism in Modern British Poetry".      When the  writ petition  filed by  him was taken up for hearing, the  High Court  held that  there was no reason why Tripathi should  not have  been appointed  to  the  post  of Lecturer in  English and  the  management  was  directed  to appoint Tripathi.  The Court  also directed  that Tripathi‘s appointment pursuant to the advertisement dated 12th August, 1989 "shall be deemed to have been made on permanent basis and shall entail the consequences in accordance with law".      The Committee  of Management of the College has come up in appeal  and has  contended that when appointment of Madhu Kapoor  was   made,  Tripathi   had   not   challenged   the

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appointment. Madhu  Kapoor functioned  as Lecturer  for more than three  years and there is no reason why Tripathi should be reinstated. The writ-petitioner would not have had any if Madhu Kapoor continued to work as a Lecturer in the College.      The basic  point is  that Tripathi  did  not  have  the requisite qualifications for appointment as Lecturer. He did not have a Ph.D. Degree when he appeared for interview. That is why an ad hoc appointment was given to him. This was done on the  basis of  representation made by Tripathi before the Selection Committee  that he  would  get  his  Ph.D.  Degree shortly. But  he failed  to get  the same  even  within  the extended time  of appointment and, therefore, the management had no  alternative but to issue fresh advertisement for the post of  Lecturer. The  ad hoc appointment was extended once and had  not been  extended thereafter.  A fresh appointment was made.  Madhu Kapoor  functioned as  Lecturer in  English till she voluntarily resigned after three years.      The contention  of Tripathi  is that  the writ petition was filed  long before  Madhu Kapoor was appointed. His case is that  the Selection  Committees had  recommended him  for appointment on permanent basis. The Committee had taken into consideration the  fact that he did not have a Ph.D. degree, but considered  his published work as equivalent to Ph.D. It was for  the Selection  Committee to assess the merit of the candidate. It  was not  the case  of the management that the Selection Committee  had erred in it assessment. The case of the management was that the two nominees of BHU, one whom was for  the management  to arrange  a proper meeting of the Selection Committee. The management did not call for another meeting of  the  Selection  Committee  but  implemented  its decision in its own way. The selection Committee recommended Tripathi to  be appointed on permanent basis. The management appointed Tripathi  on ad hoc basis on the plea that the two experts from  BHU had  failed to  attend the meeting. If the meeting was  not held properly, then the college authorities should not  have acted on the basis of the recommendation of the Selection Committee at all. In fact, no attempt was made by the College authorities to convene another meeting of the Committee to  assess the  merit of  the candidates. In other words, the management accepted the decision of the Selection Committee and  Tripathi was  allowed to function as Lecturer in English  on ad hoc basis from 12th December, 1989 to 31st October, 1990. Tripathi had duly completed his Ph.D. thesis. There was  some delay  in obtaining  the degree  because  of fracture suffered  by his  supervisor,  but  ultimately,  he obtained his  Ph.D. Degree.  His prayer is to regularise his appointment.      At the point of time when Madhu Kapoor was appointed as Lecturer in  English, Tripathi‘s  ad hoc  appointment  stood terminated. Tripathi‘s  had accepted  the ad hoc appointment after making  some protests  but actually  worked on  ad hoc basis and even got an extension of the appointment on ad hoc basis. It  was clearly  explained to Tripathi at the time of his appointment that if he obtained his ph.D. within a short time, his  appointment will  be made  permanent. It has been stated on  behalf of  the appellant that the appointment was given on  the basis of an assurance given by Tripathi to the Selection Committee.  Unfortunately, Tripathi  could not get his  Ph.D.   Degree  within  a  reasonable  time  after  his appointment. The  management  of  the  College,  thereafter, decided not  to grant  any further  extension to  the ad hoc appointment of  Tripathi and proceeded to advertise the post once again  and appointed  Madhu Kapoor  as Lecturer.  It is true  that   Tripathi   had   writ   petitions   challenging advertisement and termination of his service. Tripathi could

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not get  any interim  orders as  a  result  of  which  Madhu Kapoor‘s appointment  was made  unconditionally on permanent basis.      What happened  thereafter was a fortuitous event. Madhu Kapoor after  only three  years‘ service  resigned. The post was readvertised.  During the  three years‘  tenure of Madhu Kapoor, the  respondent did  not question  the  validity  of Madhu Kapoor‘s appointment at all nor did he stake any claim to the post occupied by her. The resignation of Madhu Kapoor could not  give rise  to any  right to the respondent. It is true that  in the meantime, he had obtained Ph.D. It is also true that  the conditions of recruitment had been relaxed to enable an  otherwise qualified  person  to  obtain  a  Ph.D. Degree within  a period  of eight  years from  the  date  of appointment. But  the case  of the respondent has to be seen on the  basis of  the rules  on force  at the  time  of  his appointment.      The respondent‘s contention that he had published works equivalent to  Ph.D. at  the time  of appointment  cannot be accepted. He  stated that  he had submitted four papers. But the  papers   were  not   published  on   the  date  of  his appointment. He  had not  given any  particulars  about  the journals or  persons to whom he had submitted his papers for publication. The  only concrete  thing he stated was that he had  written  four  books  on  English  Grammar  for  school children. But these were elementary works which could not be treated as equivalent to Ph.D. in English.      The  respondent   that  the   Selection  Committee  was satisfied as to the quality and standard of the work done by him. The College management has pointed out that the experts from BHU  failed to  attend the Selection Committee meeting. The other expert who was in the Committee was the Supervisor of the  respondent himself.  In any  event,  the  appellant- College being  the  appointing  authority  was  entitled  to appoint the  respondent on  ad hoc  basis giving a chance to him to obtain his Ph.D. Degree within a reasonable time.      We  are   of  the  view  that  the  contention  of  the appellant-College  must   be  upheld.  Although,  there  was considerable laxity  on the  part of the College authorities in the  way they  have handled  the case, we are of the view that without  strong grounds being made out, it would not be right to  unseat the  person who  has now  been appointed as Lecturer in  English pursuant  to the  second advertisement. The writ-petitioner  was not  qualified to  be appointed  as Lecture  when   he  mad  his  application  pursuant  to  the advertisement dated  12th August,  1989. Even  then  he  was appointed on  ad hoc basis and was given a chance to acquire the requisite  qualification within  a brief  period. His ad hoc appointment  was extended once and thereafter it was not extended. The  petitioner did  not have any subsisting right for continuation  of service  at that  point  of  time.  His position has  not improved  by the  acquisition of the Ph.D. Degree in  January, 1991  after he  ceased to  be a lecturer even on  an ad  hoc basis. He could have applied in response to the  advertisements that  were  issued  subsequently.  He chose not  to do  so. We  do not  find any merit in the writ petition. There  is no  reason to treat him as Lecturer even after the  period of  ad hoc  appointment was over and madhu Kapoor functioned  as lecturer  in English  for a  period of more than three years.      In that view of the matter, this appeal is allowed. The order of the High Court dated 23.12.1994 is set aside. There will be no order as to costs.

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