http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: G. MARULASIDDAIAH

       Vs.

RESPONDENT: T. G. SIDDAPPARADHYA & ORS.

DATE OF JUDGMENT01/02/1971

BENCH: MITTER, G.K. BENCH: MITTER, G.K. RAY, A.N.

CITATION:  1971 AIR 2264            1971 SCR  (3) 621  1971 SCC  (1) 568

ACT: Mysore  University Act, 1956-Rule 5 of Supplementary  Rules- Board  Appointments-Reasons to be recorded by  Board-Failure to record reasons for disregarding greater length of service of candidate does not vitiate appointment.

HEADNOTE: Rule  5  of the Supplementary Rules  promulgated  under  the Mysore  University  Act, 1956, provides that "the  Board  of Appointments  shall  give  in writing the  reasons  for  the selection  of any candidate and also the basis on which  the ’selection  has  been made and always give  in  writing  the reasons for overlooking the claims of those who are  seniors (i.e.,  total  service  as a  teacher)  and/or  have  higher qualifications." The first respondent whose total service as teacher exceeded that of the appellant was considered  along with  the appellant and two others by the Board of  Appoint- ments  for  the  post of a professor.  The  Board  made  its written  recommendation that it took into consideration  the academic  qualification, research, teaching  experience  and the performance during the interview of the four  candidates who  appeared at the interview and resolved to  appoint  the appellant  in the post.  The appointment was later  approved by the Chancellor of the University.  The ’first  respondent filed  a  writ petition in the High  Court  challenging  the appointment of the appellant as being in violation of r.  5. The  High Court quashed the appointment.  It took  the  view that the rule was a mandatory provision and it was incumbent on  the  Board of Appointments to state in writing  why  the first   respondent,   although  he   had   longer   teaching experience,  was  passed over in favour  of  the  appellant. Allowing the appeal, HELD  :  The proper construction of r. 5 is  to  regard  the length  of  teaching  experience as  one  of  the  important factors  to  be taken into consideration by the Board  of  1 Appointments.   However  much may be the importance  of  the length of teaching experience the rule did not provide  that as  the determining factor.  The rule did not lay  down  all the  factors  which  are to be considered by  the  Board  in making the selection. [625 H] In  the  present  case the academic  qualifications  of  the appellant  and  the  first  respondent  were  of  the   same

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

standard.   In mere length of service the  first  respondent certainly was superior to the appellant.  But that by itself would  not tip the scale in his favour.  The  recommendation of  the Board clearly showed that one of the  factors  which the  Board  had  taken  into,  consideration  was   teaching experience. it would be giving preference to, the letter  of the  rule than to its spirit if it were to be held that  the recommendation  of  the Board was to be treated  as  invalid merely because they had failed to state in clear words  that the appellant was preferred to the first respondent although the  latter  had a longer period of service as  a.  teacher. Rule 5 was substantially complied with by the Board and  the failure to record expressly the reasons for disregarding the greater  length of service of the first respondent  did  not vitiate   the  appointment  per  se.  At  best  it  was   an irregularity  which  was  cured  by  the  approval  of   the Chancellor. [626 C] 622

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2241 of 1970. Appeal  by special leave from the judgment and  order  dated April 15, 1969 of the Mysore High Court in Writ Petition No. 2071 of 1967. M.   C. Setalvad and R.  V. Pillai; for the appellant. B.   R. L. Iyengar and A. G. Ratnaparkhi, for respondent No. The Judgment of the Court was delivered by Mitter,  J.  In this appeal by special leave  the  appellant challenges  the decision of the Mysore High  Court  quashing his  ,appointment  as  a  University  Grants  Professor   in Sanskrit by the Board of Appointments on the sole ground  of non-compliance  with  Rule  5  of  the  Supplementary  Rules promulgated  under  the Mysore University Act,  1956.   That rule provides :                "The  Board  of Appointments shall  give,  in               writing  the reasons for the selection of  any               candidate  and  also the basis  on  which  the               selection  has  been made and always  give  in               writing the reasons for overlooking the claims               of  those who are seniors (i.e. total  service               as     teacher)     and/or     have     higher               qualifications." The  facts are as follows.  The appellant and the main  con- testing  respondent have the same  academic  qualifications. The ,a appellant joined the University as a lecturer in 1945 and  he was appointed a temporary Reader in  Sanskrit  under the  University Grants Commission Scheme which was  distinct from  other  University appointments.  He  was  appointed  a permanent Reader in the University under the said Scheme  in April 1960.  The first respondent had joined the  University as   a  lecturer  in  1938  i.e.  seven  years  before   the appellant.- He was appointed a Reader ,under the  University Grants Scheme in January 1961 i.e. several months after  the appellant.  In December 1965 the appellant was placed as the Head of the Department of Sanskrit.  It appears that in 1967 an appointment had to be made as Professor in the University Grants  Scheme,  the top position in  the  department.   The ,claims of the appellant, the first respondent and two other persons were considered by the Board of Appointments.   They were  also interviewed by the Board and on June  9,1967  the appellant  was given the said appointment.  This  was  later approved of by the ,Chancellor of the University on June 29, 1967.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

The first respondent filed a Writ Petition in the High Court challenging the appointment of the appellant under Art.  226 of                             623 the  Constitution on various grounds but the infraction  of, rule 5 set forth above was not one of them.  The High Court, however  on an application made for the purpose allowed  the ground  to be raised but the learned single Judge  dismissed the  writ petition.  The: first respondent filed  an  appeal which was heard by a Division Bench of the High Court.   The High Court turned down all but the contention based on  rule 5 above and took the view that the said rule was a mandatory provision and it was incumbent on the Board of  Appointments to state in writing why the first respondent although he had longer teaching experience was passed over in favour of  the appellant  before us.  According to the Division  Bench  the appointment  of the appellant became invalid for  this  non- compliance  of  rule 5 by the Board  of  Appointments.   The order  of appointment was quashed by the High Court  with  a direction that the University should make an appointment  in accordance  with law.  This judgment was rendered  on  April 15, 1969. The  appellant’s application for a certificate being  turned down by the High Court, he filed an application for  special leave  before this Court on 9th September 1969 along with  a petition  for stay of the order of the High Court.   On  the application   being   moved  on  September  22,   1969   the respondents  were directed to show cause why  special  leave should not be granted but an interim stay was granted to the effect that the matter of a fresh appointment as a result of the quashing of the order of the appellant’s appointment was not  to  be placed before the Chancellor  for  his  approval under  s.  26(4)  of the Mysore University  Act.   This  was occasioned  by the fact that the University had taken  steps to make another appointment necessitated by the order of the Division Bench of the High Court and had asked the appellant to appear at an interview for the purpose fixed on September 21,  1969.   On  affidavits being  filed  this  Court  after hearing  the  parties passed an order on November  14,  1969 modifying  the earlier order of stay to the effect that  the order  of  the High Court was to remain suspended  till  the disposal  of the special leave petition and as soon  as  the Chancellor  had decided the case, the parties were to be  at liberty  to  mention  the matter to this Court  and  in  the meanwhile the appellant was to continue as Professor.  On  a clarification  of  the Court’s order being  sought  for,  an order  was passed on August 26. 1970 to the effect that  the Chancellor was free to deal with the matter  notwithstanding that  the application for special leave was pending in  this Court.   It  appears  that the  Board  of  Appointments  re- constituted after the decision of the High Court had advised the appointment of the first respondent as Professor and the Chancellor,  in the circumstances of the case felt  that  he should  not come to any decision during the pendency of  the matter  before this Court.  The Chancellor’s order was  made on  November  11,  1970.  On December 11,  1970  this  Court granted special leave to the appel- 624 lant and directed the stay to continue till the disposal  of the appeal. Although   we  have  set  out  what  transpired  after   the presentation of the special leave petition to this Court  in September  1969  to give a complete picture  of  the  events concerning   the  appointment  of  a  Professor  under   the University  Grants  Scheme, we do not propose  to  take  any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

notice of what the Second Board of Appointments did.  In our view,  if the action of the Board of Appointments  taken  on June  9, 1967 and approved of by the Chancellor on June  26, 1967  was  valid, the Board would have  no  jurisdiction  to consider the matter for a second time. The  position in law appears to be as follows.   The  Mysore University Act, 1956 came into force on October 3, 1956.  S. 13  ,of the Act sets out the authorities of  the  University which  include  inter alia the Senate,  the  Syndicate,  the Academic  Council and the Board of Appointments.   Different sections  following  the  above  prescribe  the  powers  and functions   of   the  Senate,  the   Syndicate   and   their authorities.  Section 26 concerns the Board of Appointments. Sub-s. (1) of this section provides :               "Appointments  to the staff of the  University               shall  be  made in accordance with  the  rules               made  by the Chancellor in  consultation  with               the Syndicate." Sub-s.  (2)  shows how the Board of Appointments  is  to  be constituted-  for  the  purpose of  making  appointments  of Professors, Readers and Lecturers.  The Board is to  consist of  (1)  the Vice Chancellor who was to  be  the  ex-officio Chairman, (2) the Head ,of the University Department in  the subject  concerned, except where the appointment to be  made was  the post of the Head of the concerned  Department,  (3) one member who was to be an expert in the subject  concerned selected  from outside the University by the  Syndicate  and (4)  another person who was to be an expert in  the  subject concerned  selected  from  outside  the  University  by  the Chancelor.  Under sub-s. (4)               "The decisions of the Board and in such  cases               as  may be prescribed by the  Chancellor,  the               decision of the Vice-Chancellor shall not have               effect  unless  approved  by  the  Chancellor;               thereafter, every such decision shall be final               and  shall  not be called in question  in  any               manner." The  Mysore University Staff (Appointment) Rules  came  into froce on October 24, 1964.  Some supplementary Rules of  re. cruitment  governing the appointment of University  teachers were approved by the Governor under S. 26 of the Act on  8th April 1967 and these were published on May 25, 1967.  Rule 5 men- 625 tioned  above  is  one  of  these  rules.   Rule  3  of  the Supplementary Rules shows that the Board of Appointment  was to be provided at the meeting with all relevant  information about   every   candidate   regarding   his   qualification, seniority, teaching experience and research work and  under, rule  4 the Dean and the Head of the Department who were  to be  associated  with  the  Board  were  to  prepare  a  note regarding qualification, work etc. of the candidate who  had served  in the department under them and give their  opinion in  writing to the Board of Appointment.  This rule  further prescribed  that the claims of the "senior (most)"  teachers with approved service who acted in that vacancy for’ a  long time shall be given due consideration. After interviewing the candidates the Board of  Appointments made its written recommendation as follows               "The   Board  took  into   consideration   the               academic qualifications, research and teaching               experience  and  the  performance  during  the               interview of the four candidates who  appeared               for the interview.  The Board in  consultation               with   the  Dean  of  the  Faculty  of   Arts,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

             unanimously resolved that Dr. G. Narulasiddiah               be--appointed  Professor  of  Sanskrit  on   a               starting  salary  of Rs. 1,000/- P.M.  in  the               scale of Rs. 1000-50-1500 subject to the usual               period probation nor two years. If rule 5 is to be observed in its latter and not  according to  its  true  intent  it must be said  that  the  Board  of Appointments  failed  to  give  in  writing  expressing  the reasons  for overlooking the claims of the first  respondent whose total service as a teacher undeniably exceeded that of the appellant.  According to the High Court:               " . . . the clear intendment of rule 5 is that               a  superior claim to an appointment flows  out               of  the seniority to which it refers and  that               that claim should not be overlooked except for               reasons to be stated in writing and since  the               resolution  of the Board of Appointments  with               which  we  are concerned does  not  state  any               reason for the supersession of such claim with               which the petitioner became clothes under  the               rule,  we  are inclined to the view  that  the               appointment becomes invalid for that reason." We  find ourselves unable to accept the above dictum of  the High  Court.  In our view the rule was not intended to  load the  dice  in  favour of someone merely  because  of  longer experience  as a teacher.  The Proper construction  of  that rule  is to regard the length of teaching experience as  one of  the important factors to be taken into consideration  by the  Board  of  Appointments.   However  much  may  be   the importance of the length of teaching experience the 6 2 6 rule  did not provide that as the determining  factor.   The rule  did  not  lay down all the factors which  were  to  be considered  by  the  Board in making  their  selection.   Of necessity they had to consider: the academic  qualifications of  the respective candidates including that of the  quality of  their teaching and of the research work if any to  their credit, their past experience and the impression which  they created in the minds of the persons constituting the Board’. Rule  5  laid  particular  stress to  the  total  length  of teaching  experience of the candidates but it was not  meant to outweigh other consideration. In this case it appears that the academic qualifications  of the  appellant  and the first respondent were, of  the  same standard.   In mere length of service the  first  respondent certainly was superior to the appellant.  But that by itself would  not tip the scale in his favour.  The  recommendation of  the  Board clearly shows that one of the  factors  which they had taken into consideration was "teaching  experience" and in 1967 when the appointment was made the appellant  had to  his credit a period of 22 years of  teaching  experience while  the first respondent had 29 years of service  to  his credit.   It is not as if the appellant was a man very  much junior  in  age  to the first respondent with  a  career  in teaching far shorter than or negligible compared to that  of the first respondent.  It must also be noted that when there was  a question of appointing a temporary Reader  under  the University  Grants Scheme in 1958 it was the  appellant  who was  given preference to the first respondent and even as  a permanent  Reader  he secured the  appointment  some  months ahead of the first respondent.  The preference given to  him in  the  past was certainly one of the factors to  be  taken into  consideration.   In  our  view  it  would  be   giving preference  to the letter of the rule than to-its spirit  if we  were  to hold that the recommendation of  the  Board  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

Appointments  was  to be treated as invalid  merely  because they had failed to state, in clear words, that the appellant was  preferred to the first respondent although  the  latter had a longer period of service as a teacher. Mr. Setalvad appearing for the appellant drew our  attention to  Seniority Rules which were framed with the  approval  of the Chancellor and came into force on 30th March 1969 during the pendency of the matter before the Division Bench of  the Mysore High Court.  Rule 7 of these rules provides that :               "Teachers appointed to a class of post in  the               University  Grants Commission scale  shall  be               deemed  senior  to teachers holding  the  same               class of posts in the University scale." Reference  was made to this rule for the purpose of  showing that  the  appellant  who  had  been  a  Reader  under   the University Grants 627 Scheme nearly three years before the &St respondent would be senior  to him in terms of the rule if it had been in  force And even otherwise counsel contended that the mere fact that the   appellant  had  preceded  the  first   respondent   in appointment   tinder  the  Said  scheme  showed   that   his preference  over the first respondent was,  not  undeserved. We do not think that we can take into account rule 7 for the purpose of our decision in this case. Mr.  Setalvad’s second contention was that it  was  apparent from  the  recommendation  of  the Board  that  rule  5  was substantially  complied  with  and as such  the  High  Court should not have set aside the appointment of the  appellant. He  also placed reliance on sub-s. (4) of S. 26 as giving  a finality   to  the  approval  of  the  Chancellor   to   the appointment made by the Board. Mr.  Ayyangar appearing for the first respondent  contended, first,  that rule 5 was divided into two parts and that  the provision  for  a statement in writing  giving  reasons  for ignoring a person’s total length of service as a teacher had to  be complied with by the Board and any disregard of  this rule rendered the appointment invalid.  Counsel argued  that the  rules had statutory force and the mere approval of  the Chancellor  under, sub-S. (4) of S. 26 of’ the Act  did  not put  a seal on the case so as to prevent from  scrutiny  the disregard  of  any mandatory provision of the  rules  framed under S. 26(1) and approval of the Chancellor would not cure such  illegality.   In our view, rule  5  was  substantially corn-plied  with  by  the Board and the  failure  to  record expressly the reason for disregarding the greater length  of service  of  the  first  respondent  did  pot  vitiate   the appointment  per se.  At best it was an  irregularity  which was cured by the approval of the Chancellor. Mr. Setalvad’s last contention was that the High Court  had- gone wrong in quashing the appointment but should have rele- gated the matter back to the Board of Appointments to comply with the requirements of r. 5 and for this he relied on  two English  decisions in Iveagh (Earl) v. Minister  of  Housing etc.(1)  and Brayhead Ltd. v. Berkshire  County  Council(2). In the view we have taken it is unnecessary to consider  the last  point  raised by counsel or the effect  of  these  two decisions.  The Board of Appointment was constituted of four persons  who  were eminently fitted to assess  the  relative merits  of the candidates before them at the  interview  and their  recommendation  shows  that  although  they  had  not expressly recorded any reason in terms of the rule, they had taken  the  teaching  experience  of  the  candidates   into consideration.  Our conclusion might have been otherwise  if it  were shown that the Board had not considered the  length

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

of teach-- (1) [1963] 3 All.  E.R. 817 (2) [1964] 1 All.  E.R. 149. 628 ing experience of the candidates as one of the, factors  for coming their decision. In the result we allow the appeal and set aside the order of the  High  Court  holding that  the  appellant  was  validly appointed as a Professor under the University Grants Scheme. In  the circumstances of the case, we leave the  parties  to bear their own costs. Before parting with this case we cannot but express our dis- approval  in  noting that the canker  of  litigiousness  has spread  even  to a sphere of life  where  discipline  should check ambition concerning personal preferment.  A teacher is justified in taking legal action when he feels that a stigma or punishment is undeserved but he is expected to bear  with fortitude  and  reconcile  himself to  his  lot  suppressing disappointment  when  he  finds  a  co-worker  raised  to  a position which he himself aspired after. K.B.N.                             Appeal allowed. 629