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PETITIONER: THE KONCH DEGREE COLLEGE,CONCH JALAUN ETC.

       Vs.

RESPONDENT: RAM SAJIWAN SHUKLA & ANR. ETC.

DATE OF JUDGMENT:       06/02/1997

BENCH: K. RAMASWAMY, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CIVIL APPEAL NO. 5322 OF 1983                          O R D E R      IN C.A. No.5321/83      This appeal  by special  leave arises from the judgment of the  Division Bench  of the Allahabad High Court, made on October 4, 1982 in civil miscellaneous Writ No.6976/75      The appellant  had called for selection of teachers for History subject.  The first  respondent Ram Sanjeevan Shukla had applied  for and  was selected.  Admittedly, he  studied Ancient  History   as  his   subject.  Therefore,  when  his selection was  sought ratification to the Vice-Chancellor by his proceedings  dated May  16,1975 refused  his approval on the ground  that Ram  Sanjeevan Shukla  was  unqualified  to teach the  subject of History since his study was in Ancient History. The  respondent had challenged the same in the writ petition. In  the meanwhile,  one Umesh  Chandra Kanchan was appointed as  a lecturer in History and he claimed the place of Ram  Sanjeevan Shukla. In view of the fact that the Vice- Chancellor had  refused approval  of the  appointment of Ram Sanjeevan Shukla,  the High  Court had  held that  the Vice- Chancellor had  rightly refused  to grant  approval  of  the selection of  Ram Sanjeevan Shukla as a lecturer in History. We are  informed that subsequently the Department of Ancient History was  created  and  the  first  respondent  has  been teaching in  the Department, while Umesh Chandra Kanchan has been teaching  the History  subject. Consequently,  both the posts are  continuing in  the  appellants  college.  We  are informed that  the post  of Lecturer of Ancient History is a temporary post being continued on year to year basis. We are afraid that  at this  distance of  time, it  would  be  very difficult to give acceptance to the contention that the post is a temporary post. For well over 20 years, when the post s being continued,  though on  temporary basis, it is acquired the status  to be  of a  permanent nature. As a consequence, the respondent,  namely, Ram Sanjeevan Shukla in the Ancient History  Department   requires  to   be  continued  and  the Government would be liberty to convert it as permanent post.        The appeal is accordingly disposed of. No costs.      IN C.A. No. 5322/83

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    This appeal  concerns two  Lecturers, namely,  Surendra Narain Saxena  and Mithilesh  Kumar  @  Kantesh  both  being Lecturers in  Hindi. As  per  the  procedure  in  vogue  for appointment in  an affiliated  college,  the  advertisements calling applications  requires to  be made and the selection by  duly   constituted  committee   approved  by   the  Vice Chancellor under  Section 26(4)  of the  Kanpur  and  Meerut Universities  Act,   1965(for  short,  the  ’Act’).  In  the advertisement  published  for  recruitment,  it  is  not  in dispute that  instead of  publication of  vacancy  in  three local  newspapers   publication  was   made  only   in   two newspapers. Consequently, when appointment of S.N.Saxena was sought approval,  the Vice-Chancellor under Section 26(4) of the Act  neglected it.  He challenged  the order in the writ petition. In the meantime, when Thakur Das Vaidya, a teacher in service  retired, Mithilesh  Kumar came  to be appointed. His approval  also was  sought for  and the  Vice-Chancellor turned it  down on  the ground that he had not possessed the minimum qualification  for appointment  as  a  teacher  and, therefore, the  recommendation by  the  appellant-Management was bad  in law. Since the High Court set aside the order of the Vice  Chancellor  and  directed  regularisation  of  the service of  S.N Saxena,  the appellant has come in appeal to this Court.  Pending proceedings,  a direction was obtained, on an account of the dearth of a qualified teacher to impart education in  the subject,  permission to reinstate Surendra Narain Saxena  who was,  in the  meanwhile, terminated. As a consequence, he was reinstated and he had been continuing in service. It  is true,  as rightly  pointed out  by the  High Court, that the advertisement required to be made in view to inform all  the candidates  who wish  to apply  for and seek selection to  the post  which  the candidate is qualified to apply for and seek selection.      As regards the qualifications of Surendra Narain Saxena is concerned,  indisputably, he  was qualified  to apply for and seeks  selection for appointment as a Hindi Lecturer. He came to  be selected and approval was declined on the ground of infraction  of the  rule, namely, omission on the part of the  management   to  publish  the  advertisement  in  three newspapers, instead  published only in two newspapers. It is mandatory on  the part  of the management to ensure that due publicity should  be made in the newspapers to put on notice of all  intending candidates  for selection,  the infraction would necessarily  be considered  mandatory in  the light of the object  the Act  seeks to achieve. The management should be insisted  upon compliance of the rigour of the rule. They cannot take  shelter that all had applied for selection. But since the respondent has been continuing, was duly qualified and selected  and as  per the  orders of  this Court, he was reinstated, we  do not, at this distance of time, incline to interfere  with   the  appointment,   though  the  statutory compliance was  not  made  by  the  appellant-Committee,  to invalidate the appointment.      As regards  Mithilesh Kumar @ Kantesh is concerned, the Vice-Chancellor has  rightly pointed  out in his proceedings dated  May  31,  1985  of  lack  of  prescribed  educational qualification. Thus, while refusing to sanction the approval of Mithilesh  Kumar @  Kantesh for  a period upto 30.6.1978, the Vice-Chancellor  has given  directions to  advertise the post  as  he  did  not  possess  the  minimum  qualification prescribed  by   the   statue.   Hence,   his   service   is automatically stands  terminated on  the expiry  of the said period. If  the management retains Mithilesh Kumar @ Kantesh in      service      after      that      date,      namely, 30.6.1978,  it   was  illegal  and  the  management  is  not

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empowered to  keep him  in service on the said post as he is not  a   teacher  either  duly  select    and  appointed  in Mahavidyalaya or  qualified to  hold the post. In para 2, it is  reiterated   that  he   did  not   possess  the  minimum qualifications laid down by the statue and the selection was not in  compliance of  the provisions of Section 31(3)(b) of the Act.  Even at  the time  of the original appointment, he was not  qualified and,  therefore,  the  Management  cannot appoint him  under the  Rules. In  the light  of  the  above directions, we  do not  think that  the action  taken by the appellant in appointing him as in accordance with law.      It is  true, as  pointed out by the learned counsel for the appellant,  that this  Court by  an interim  order given option to  the appellant  to take  the services of Mithilesh Kumar, "if  they  so  desire".  It  would  be  obvious  that appellant  is   soliciteous  to  take  the  service  of  the unqualified Mithilesh  Kumar to confer unmeritered and undue favour on  him and  the direction  to the  management to the advertise the post and to select the qualified candidate was delibrately violated,  and flouted.  At this stage, it is of relevant  to   note  that  Section  31(b)  and  not  Section 31(3)(b), as  wrongly quoted to mislead the Court, envisages the mode  of selection  of  the  affiliated  colleges.  Sub- section(1) of section 31 says that subject to the provisions of this Act, the teachers of the University and the teachers of an affiliated or associated college (other than a college maintained exclusively  by the  State  Government  shall  be appointed by  the Executive council or the Management of the affiliated or associated college, as the case may be, on the recommendation  a   Selection  Committee   in   the   manner hereinafter provided.  The Selection Committee shall meet as often as necessary. Section 31(4)(d) says that the Selection Committee for  the  appointment  of  other  teachers  of  an affiliated  or  associated  college  other  than  a  college maintained exclusively by the State Government shall consist of -  (i) the  Head of  the Management  or a  member of  the management nominated  by him who shall be the Chairman: (ii) the Principal  of the  college and  another teacher  of  the college nominated  by the  Principal:(iii) two experts to be nominated  by   the  Vice   Chancellor.  The  first  proviso postulates that  provided  that in the case of college where there is no Principal or other teacher available for being a member of the Selection Committee under sub-clause (ii), the remaining  members   referred  to   in  this   clause  shall constitute such  Selection Committee.  It  would,  thus,  be clear that  even for  a temporary appointment, the Selection Committee requires  to be  as per  clause (b) of sub-section (3) of  section 31  of the  Act and  the selection  is  made before approval  is sought.  It would be obvious that only a qualified and  competent Lecturer should be selected and its approval is sought. It does not appear that such a procedure was followed.  That apart, as per the statue, as pointed out by  the  Vice-Chancellor,  Mithilesh  Kumar  does  not  even possess of  the minimum  qualifications for  the  post.  The learned counsel  repeatedly reiterated that he was qualified without placing  any unimpeachable  documentary  evidence in disproof of the finding by the Vice-Chancellor.      Under  those  circumstances,  the  continuance  of  him cannot be approved by the Vice-Chancellor and, therefore, it cannot  be  given  any  direction,  as  sought  for  by  the appellant for  the approval. Learned counsel pointed out the approval was  subsequently given.  That would  relate as per the directions  of the Court and, therefore, when the appeal isdis posed  of,the approval  does not  have  any  validity. The appeal is accordingly dismissed. No costs.

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