31 October 1996
Supreme Court


Case number: C.A. No.-004613-004614 / 1996
Diary number: 12574 / 1995






DATE OF JUDGMENT:       31/10/1996




JUDGMENT:                             WITH                 CIVIL APPEAL NO 4616 OF 1996                       J U D G M E N T MAJMUDAR,J      These three  appeal arise  out  of  a  common  judgment rendered by a Division Bench of the High Court of Judicature at Allahabad  in different writ petitions made by the common appellant Dr.  Mahak Singh in Civil Appeal Nos, 4613-4614 of 1996 and  by one  of the  writ petitioners Dr. Rajvir Singh, appellant in  companion Civil Appeal No.4616 of 1996.  These appeals project  a common controversy of a triangular nature amongst three  contestant-teachers attached to Janata Vaidic (Post Graduate) College.  Baraut in Uttar Pradesh which is a degree collage  affiliated to  the Meerut  University.   The contestants are  Dr. Mahak  Singh on the one hand who is the appellant in  first two appeals and respondent No.3 in these appeals Dr. S.P. Singh as well as respondent NO.5 Dr. Rajvir Singh in  these two appeals who in his turn appellant in the companion Civil  Appeal No.4616  of 1996.   All the three of them claimed to be entitled to work as incharge-Principal of the said  Degree Collage on the ground that each one of them was the  senior most  teacher.  The High Court in its common impugned judgement  has taken the view that out of the three contestants, common  respondent  No.3  in  these  appeals  , namely, Dr.  S.P.  Singh  is  entitled  to  work  as  Acting Principal till regular Principal is appointed in the college by following  the due  procedure or law.  This conclusion to which the  High Court  reached is  on the basis that amongst the three  contestants he  is the  senior  most.    This  is seriously brought  in challenge  by the  common appellant in the first  two appeals Dr. Mahak Singh.  His learned counsel Shri Prashant  Bhushan submitted that Dr. Mahak Singh is the senior most lecturer and hence entitled to be considered for being appointed  as Acting  Principal while  learned counsel for respondent  No.5 submitted  in support  of his companion appeal that  Dr. Rajvir  Singh is entitled to the said post. Learned counsel  for common  respondent No,  .3 on the other hand submitted  that the  High Court  has rightly  taken the view that respondent No.3 is the most eligible candidate for the purpose.



    In order  to resolve  this triangular controversy a few relevant facts  leading to these proceedings are required to be noted  at the outset.  Earlier the college in which these three  contestants  are  working  as  senior  lecturers  was affiliated to Agra University under the Agra University Act, 1926.   The said college was, the therefore, governed by the provisions of the said act and the statute framed thereunder form the  very beginning  till 1.7.1965.    The  Kanpur  and Meerut  University   Act  was   enforced  with  effect  from 1.7.1985.    As  a  result  thereof  the  said  college  got affiliated to  Meerut University.   Since no statute of Agra University.   Consequent upon the framing of the Statutes of Meerut  University   26.9.68,  the  college  was  thereafter governed by  the said  Statutes,  The senior most of teacher of affiliated  colleges was  governed by Statute No.11.34 of that University.   U.P. State Universities Act, 1973 came in to force  with effect from 2.9.73.  Since no statutes of the Meerut University continued to govern the service conditions of the  teachers of  affiliated college.   First Statutes of the  Meerut   University  were   framed  under   U.P.  State Universities Act,  1973 which  came in to force from 1.5.77. For the  purpose of  determining the  seniority of  teachers Chapter XVIII  of  these  statutes  became  applicable  with effect form  1.5.77.   It is  not in  dispute that  the rate these statutes to which we will make a detailed reference at an appropriate stage.      The service Bio-Data of the aforesaid three contestants run as under:      The appellant  in Civil  Appeal Nos.4613-4614  of 1996, Dr. Mahak  Singh was  ap[pointed on  9.7.59 as  lecturer  in Agronomy in  the grade  of Rs.225-450  for  teaching  degree classes in  the aforesaid  college.   On  6.11.1963  he  was appointed as  Head of the Department (Post Graduate College) in the  grade of Rs.350-800.  ON 1.1.86 he was designated as Senior Lecturer in the grade of Rs.3700-5700.      Dr. S.P.Singh,  common respondent No.3 was appointed on 9.7.59 as  lecturer in  the same  college for  teaching post graduate classes in the subject of Economics in the grade of Rs.250-500.   On 6.11.63  he was  designated as  Head of the Department, Post  Graduate Classes in the grade of Rs.  350- 800.   On 1.1.1986  he  was  granted  the  grade  of  senior lecturer i.e. Rs.3700-5700.      Dr. Rajvir  Singh, respondent  No.5 in  the  first  two appeals and  appellant in  the companion  appeal No.4616  of 1996  was   appointed  as  post  graduate  lecturer  in  the aforesaid college  on 9.7.61  in the  grade of Rs.250-500 in D.A.V. College, Muzaffarnagar in the subject of Geology.  On 25th August, 1964 he was appointed and designated as Head of the Department  Post Graduate  Classes in  the grade  of Rs. 350-800 in  the college  to which  the other two contestants belonged.   It appears  that his  service tenure in the same college  underwent  rough  weather.    Even  though  he  was designated as  Head of the Department on 9.7.66 in the grade of Rs.700-1100, subsequently his services were terminated on 7.5.69 and  said termination  order was set aside on 31.1.73 and thereafter  he joined as lecturer in the same college in the grade  of Rs.700-1600.  On 1.1.1986 he was granted grade of Rs.  2200-4000.   The said  grade was that of a lecturer. He was  designated as  a senior lecturer in the grade of Rs. 3700-5700 with effect from 31.1.1986.      The aforesaid Bio-Data of the three contestants is well borne out  from the  record of the case and has been treated by the  High Court to be well established.  However, learned counsel for respondent No. 5 in these two appeals Dr. Rajvir Singh  vehemently   contended  that  his  client  should  be



considered to  have been  appointed as  a senior lecturer in this very  college not  form 31.1.1986  but from  1.1.86, he should have  made such  a grievance  at the  relevant  time. Years rolled  by still  he never  made a grievance about the same and accepted the decision that the was to be designated as  senior   lecturer  only  from  31.1.86.    Subsequently, therefore when  vacancy of Principal arose in, 1993 when the then Principal Dr. P.S. Malik, retired and when the question of appointed  of an  Acting Principal  arose it was too late Dr. Rajvir Singh to contend after seven years that he should have been  treated to  be a  senior lecturer form 1.1.86 and not from  31.1.86.   We must, therefore proceed on the basis that appellant  Dr. Mahak  Singh and  respondent  No.3  were designated as  senior lecturer  from 1.1.86 while respondent No.5 Dr.  Rajvir Singh  was rightly designated as the senior lecturer from  31.1.86.   In the  background of this service bio-data of  all the  three contestants,  the short question which arises  for our consideration has to be resolved.  The relevant stature  for resolving  this controversy  is 13.20. It is  not in dispute the parties that the said statute held the field  when the  vacancy of the Principal of the college occurred on  30th June,  1993.   The said  stature reads  as under:      13.20:-  When  the  office  of  the      Principal of  an affiliated college      falls vacant,  the  Management  may      appoint any teacher to officiate as      Principal for  a  period  of  three      months or  until the appointment of      a regular  Principal, whichever  is      earlier.    If  on  or  before  the      expiry  of   the  period  of  three      months, any  regular Principal does      not appointed,  or such a Principal      does not assume office, the senior-      most teacher  in the  college shall      officiate  as   Principal  of  such      college until  a regular  Principal      is appointed.      It is  not in  dispute between  the  parties  that  the office of  the Principal  of college  to which all the three contestants belonged  fell vacant form 1st July, 1993 and on the expiry   of  three months  form  that  date  no  regular Principal came  to be  appointed.   It is  pertinent to note that  even   till  date  no  regular  Principal  has  become available  to  take  over  the  charge  of  the  college  as Principal.   We are told that the relevant recruiting agency for the  said purpose  has already  selected a candidate for the said  post who  is other  than any of contestants before us.   But even  his appointment  is held  up  because  of  a pending litigation  in Allahabad  High Court.  Be that as it may a situation has emerged and has continued to operate qua the college in question, wherein Statute 13.20 has continued to operate  all through  out till  date.   It is, therefore, necessary to  find out  as to who is the senior-most teacher in this  co amongst  the three  contestants who  can legally officiate as Principal of the college which is an affiliated college.   Stature 11.34  in Part  V  of  the  statute  with seniority of  teacher in  affiliated colleges  would  become relevant for exercise, it reads as under:      11.34:- Subject to the provision of      this  Statute   the  seniority   of      teachers in  a particular   college      shall be  determined by  the length      of service  in that  college in the



    same cadre and by the same grade.      For applicability of this statute it has to be found as to who  was the senior-most teacher in his college belonging to the  same cadre  and having the same grade and having the same grade of pay when the vacancy of Principal arose on the expiry of  three months  from 1st  July, 1993  i.e. from 1st October .1993.   It  is sen  form the aforesaid service bio- data of  all the  three contestants  that all  of than  were working in  the grade  or senior  lecturers and were drawing the  same   emoluments  in  the  grade  of  Rs.3700-5700  on 1.10.1993.   Then the next question arises as to who was the senior-most amongst  them in  cadre of  senior lecturers  in this college.   So  far as  contestant Dr.  Rajvir Singh  is concerned the  answer is  obvious.   He  was  designated  as senior lecturer  form 31.1.86  as  compared  to  the  common appellant Dr, Mahak Singh and the common respondent No.3 Dr, S.P. Singh.   He  naturally, therefore,  gets weeded  out by these two  seniors of  his in the cadre of senior lecture as both of  them were  senior to  him by atleast 30 days on the Principal of continues officiation as senior lecture .  That removes Dr.  Rajvir Singh  from the array of contest for the post of  Acting  Principal  on  the  combined  operation  of Statutes 13.20  and  11.34.  However,  strong  reliance  was placed by  learned counsel  for Dr.  Rajvir Singh on Statute 13.05 read with statute 18.16 which read as under:      "18.05:-  The following rules shall      be  following  in  determining  the      seniority  of   teachers   of   the      University-      (a)   A Professor  shall be  deemed      senior  to   every  Reader,  and  a      Reader shall  be deemed  senior  to      every Lecturer.      18.16:- The  provisions of Statutes      18.01, 18.02  18.05 and 18.08 shall      mutatis  mutandis   apply  to   the      teachers    and    Principals    of      affiliated colleges  as they  apply      to the teachers of the University."      On the  basis of  three statutes  it was  submitted  on behalf of  Dr. Rajvir  Singh that  even though  the relevant statutes round in Chapter XVIII with seniority of teacher of University atleast  Statute  18.05  would  mutatis  mutandis apply to the teachers and principal of affiliated college to which all the three contestants belonged.  to that extent he is right.   However,  the question is whether in the college to which  the contents to belonged where the    of Principal occurred, was  was there any reader who could rank senior to a lecturer  so  that  Statute  18.05  could  be  effectively pressed in  service by  Dr. Rajvir Singh.  The said question is to be answered in the negative for the simple reason that on the  date on  which the vacancy of Principal occurred, as aforesaid,  Dr. Rajvir Singh had no longer remained a reader but he  was designated  as a  senior lecturer.   IN  part he might have  been a  reader but it became a matter of history for him  as though  he was  designated as reader and Head of the Department on 9.7.66 with passage of two decades by 1986 he became  a  lecturer  from  1.1.86  and  became  a  senior lecturer only  from 31.1.86.    Consequently  Statute  18.05 cannot be of any assistance to him.  This conclusion of ours will put Dr. Rajvir Singh, appellant in Civil Appeal No.4616 of 1996  out of  contest and  his appeal  would be liable to fail.      Then  remain  in  the  field  of  contest,  the  common appellant Dr. Mahak Singh and the common respondent No.3 Dr.



S.P. Singh whose claim has found favour with the High Court. So far  as this  contest is  concerned, it  must at  once be stated agreeing  with Shri Prashant Bhushan, learned counsel for the  appellant, Dr. Mahak Singh that his client became a lecturer form  9.7.59 on  a regular vacancy while respondent No.3 who  was appointed as lecturer on 9.7.59 was admittedly unqualified to  be appointed as such on regular basis and he was granted  relaxation of  educational qualifications  only 15th April, 1960 by the Executive Council of the University. Therefore he  can be  said to have become a regular lecturer only from that date.  It is well settled that if a person is appointed irregularly  on a  post and  if he  is regularised later on  his initial  appointment would  be treated as void and he  wi be  considered to  have been  regularly appointed only from  the fate  of such  regularisation  and  would  be treated as  having entered  in service  form that  date.  In Shitla Prasad  Shukla v.  State of U.P. and Ors. 1986 (Supp) SCC 185 in para 9 of the said Report and Bench of two judges of this Court speaking through M.P. Thakkar. J. had made the following pertinent observations in this connection:      "There is  also one  more dimension      of  the   matter.      Though   the      appellant   was    working   as   a      lecturer,  it  was  not  under  any      authority of  law for  there is  no      provision   which    empowers   the      college to  allow  any  unqualified      person to  teach or  to appoint him      as  such  in  anticipation  of  his      disqualification being  removed  in      future.   Till  the  exemption  was      granted appellant  was not  even  a      teacher in the eye of law though he      was  allowed   to  teach   by   the      indulgence  of  the  college  auth.      The  disqualification  was  removed      only on July 23 1963 when the Board      granted the  exemption.   How could      he have claimed seniority via-a-vis      respondents 5  and 6  who possessed      the  requisite   qualification  and      became   regularly   and   lawfully      appointed   teacher    such   prior      thereto?      It must, therefore, be held that respondent o. 3 became a regular  lecturer  in  this  college  from  16.4.1960  and Appellant Dr.  Mahak Singh  on the  other hand was a regular lecturer in  this college  from 9.7.59  and was,  therefore, senior to  him.   However we are strictly not concerned with the initial  seniority of these two contestants.  We have to examine a  situation  that  obtained  when  the  vacancy  of Principal arose  i.e.  on  1.10.1993.    On  that  date  the appellant as  well as respondent No.3 were working as senior lecturers in  the same  grade from  the very  same date i.e. from 1.1.1986.   The  question therefore  arises as  to  who between them could be said to be senior so as to be entitled to be  considered for being appointed as Acting Principal as per Statute  13.20 read within Statute 11.34 as both of them by that  time had  equal length of continuous officiation as senior lecturers   and  were in  the same  grade.   In  this connection two  aspects assume  Importance.  Firstly between the two  who was senior in the light of the initial entry in the college  as lecturer  and secondly  who between  the two would be  entitled to  be considered  for the post of Acting Principal which  is a stop-gap arrangement awaiting the duly



selected   Principal.    So  far  as  the  first  aspect  is concerned as we have seen above the appellant was definitely senior to  respondent No.3  as a lecturer.  However the more important question to when the appellant are respondent No.3 were equally  placed in  the grade  of senior  lecturers and were officiating  as such  form  the  very  same  date,  who between  them   would  be  entitled  to  become  the  Acting Principal.  For answering this question the general bio-data of both  of them  apart from  their service  bio-data  would assure importance especially when we are examining the rival claims in appeals under Article 136 of the Constitution.  So far as  this aspect  is concerned for respondent No.3 to the counter affidavit  filed on behalf of respondent No.3 in the special leave  petitions from which these appeals arise.  In paragraph 20  of the  said counter, it has been averred that the  credentials   of  the   writ  petitioner   i.e.(present appellant) are  themselves not impeccable and unimpeachable. The petitioner  (the appellant)  has several  criminal cases registered  against  him  in  the  town  of  Baraut  itself, including the  particulars of which are annexed at Annexure- C.   When we  turn  to  Annexure-C  we  find  the  following particular:            LIST OF CRIMINAL CASES PENDING AGAINST                  SHRI MAHAK SINGH IN BARAUT 1.    FIR No. 167/82 under section  147/148/149/307/324 IPC 2.    FIR No. 185/82 under section 328 IPC 3.    FIR No. 282/87 under section 147/148/149/307/302 IPC 4.    FIR  No. 191/88  under section 147/148/149/307/323/171 IPC 5.    FIR No. 196/88 under section 307/34 IPC. 6.    Fir No.. 299/80 UNDER SECTION 147/324/323/426 IPC.      Learned counsel  for the appellant joined issue on this aspect and  incited our  attention to  paragraph  8  of  the rejoinder affidavit  of the  appellant at  page 115  of  the paper book which reads as under:      "As   regards    the   respondent’s      attempt to show that the petitioner      has several  criminal cases pending      against him,  this  charge  of  the      respondent   is    malicious    and      misleading.  It is pointed out that      the petitioner has been involved in      public life  and has been an M.L.A.      to  the   Legislative  Assembly  in      1991.   the petitioner,  therefore,      has various  political  rivals  who      lodged false complaints against the      petitioner.   Gut of  the six  FIRs      mentioned, the  petitioner is aware      of only  the first  five.   Out  of      these FIRs at item 1,2,4 and 5, the      charges against the petitioner were      found to  he false  and there is no      proceedings pending  in respect  of      the same.  At No.3 involves a false      complaint  against  the  petitioner      which was  made  eight  years  ago.      The case  is still pending for more      than eight  years though the charge      against the  petitioner is  totally      baseless  and   the  petitioner  is      accused of  offence in  the village      at a  time when  the petitioner was      attending a  sports function in the      college."



    It  becomes,  therefore,  clear  that  from  year  1980 onwards the appellant was involved in so many criminal cases in connection  with offences  under Indian  Penal Code.  All the alleged offences were against human body and they ranged from alleged  offences under  Sections 324,  326 and 426 and extending up  to offences  under Sections 307, 147, 148, 149 and even  Section 302 I.P.C.  We may take it as submitted by the learned counsel for the appellant that out of the listed six  cases   in  Annexure-C  to  the  counter  affidavit  of respondent No.3,  the appellant  was discharged  in all  the cases expect  one under  Section 302  I.P.C. which  is still pending since  number of  years.   On our further enquiry we were informed  by learned  counsel for the appellant as well as respondent No.3 that the criminal case regarding  offence under Section  302 I.P.C.  which is at the stage of evidence before the  Sessions Court,  the appellant  is accused of an offence of  double murder  alleged to have been committed by inflicting gun  shots on the deceased.  We are not concerned with the  merits of  the said controversy as learned counsel for the appellant contended that it is totally  a false case foisted upon  the appellant  by his   political rivals as he was an  active political  worker who  subsequently became  a Member of  Legislative Assembly.  Be that as it may when the question arises  as to who should be the Acting Principal of the Degree College wherein apart form administrative duties, the Principal  being the  head of the institution has to act as a  model for  the students,  and especially when both the appellant  and   respondent  No.3  are  equally  placed  and situated as  senior lecturers drawing the same pay scale and officiating from  the very  same day,  equity would tilt the balance against the appellant as admittedly he is at present facing a  charge of  double murder  under Section 302 I.P.C. When such  is   the bio-data of the appellant atleast he can be said  to be  under a  cloud of a serious criminal charge. Consequently even  assuming  that  both  the  appellant  and respondent No.3  are otherwise  equally  situated  form  the point of  view of seniority as senior lecturers and that the initial entry  as a  lecturer makes  the appellant senior to respondent No.3,  even then  in our  view  while  exercising jurisdiction in  appeal under Article 136, we would be loath to give  any relief to the appellant so as to entitle him to work as  Acting Principal  of the  Degree College when he is facing the charge of double murder.  We obviously cannot and do not  express any  opinion on  his culpability but atleast this involvement  and cloud affect his credentials for being considered as  a suitable  candidate for  the post of acting Principal of  the college wherein students have to be taught discipline and  are to be equipped with knowledge, expertise and higher  values  of  life  so  as  to  make  them  better citizens.   For acting  as  the  head  of  the  institution, therefore, in  the light  of the aforesaid peculiar facts of the situation,  in our  view  the  appellant  would  not  be entitled to  get the  balance   titled in  his  favour  even assuming that  he was senior to respondent No.3 initially as a lecturer.   We  also make it clear that this assessment is also confined  to the  limited question  as to  who would be considered senior  for the  purpose of  being  appointed  as Acting Principal  under statute  13.20.  Once the High Court has taken the view that between the appellant and respondent No.3, respondent  No.3 is entitled to be appointed as Acting Principal under  the said statute, and once we find that the appellant is  not entitled to relief at our hands in view of the peculiar  facts and  circumstances in which he is placed as indicated  hereinabove,  no  case  is  made  out  by  the appellant for  our interference  under Article  138  of  the



Constitution of India in the present proceedings.      As a  result of  the aforesaid discussion Civil Appeals No.4613-4614 of 1996 filled by the appellant Dr. Mahak Singh fail and  will stand  dismissed.    Similarly  Civil  Appeal No.4616 of  1996 filled  by Dr. Rajvir Singh will also stand dismissed.   In the  facts and  circumstances of  the  case, there shall be no order as to costs in all these appeals.