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DR. JAGDAMBA SINGH & OTHERS versus VICE CHANCELLOR UNIVERISTY ALLD. & ANOTHER

High Court of Judicature at Allahabad

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Dr. Jagdamba Singh & Others v. Vice Chancellor Univeristy Alld. & Another - WRIT - A No. 31116 of 1999 [2000] RD-AH 9 (17 April 2000)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

Civil Misc. Writ Petition No.31116 of 1999

Dr. Jagdamba Singh and others Vs. Vice Chancellor, University of Allahabad and another

                                          And

Civil Misc. Writ Petition No.36208 of 1999

Dr. Mridula Ravi Prakash Vs. Vice Chancellor, University of Allahabad and another

Hon'ble M. Katju, J.

Hon'ble D.R. Chaudhary, J.

              (Delivered by Hon'ble D.R.Chaudhary, J.)

These two writ petitions involve common questions of law and facts and can be decided by a  common judgment and as such the same are being taken up together.

By means of advertisement Nos. 3,4 and 5 of 1999 (Annexure Nos.1, 2 and 3 to the writ petition), the University of Allahabad has advertised 188 posts (38 posts for Professors, 65 posts of Readers and 85 posts of Lecturers) which were lying vacant in different departments of the University.  The petitioners of writ petition No.31116 of 1999 have prayed for a writ, order or direction in nature of certiorari quashing the advertisement Nos. 3,4 and 5 of 1999 and for a direction in the nature of mandamus commanding the University to incorporate the qualifications as provided in the notification issued by the University Grant Commission in short (U.G.C.).  The petitioners have further prayed for a direction to the University to re-advertise the posts mentioning in the advertisement itself the minimum qualifications prescribed for the said posts as amended up to date and to apply the roster as provided by the State Government properly making reference to this effect in the advertisement itself.  The other prayers of the petitioners are to apply the reservation policy on the posts of Professor also and to advertise one post of Reader in Chemistry earmarking it for Physical Chemistry working in the field of Theoretical Solid State Chemistry.  The petitioners of writ petition No.36208 of 1999 have also made similar prayers.

The petitioners of Writ Petition No.31116 of 1999 are teachers of the University of Allahabad excepting petitioner no.11 who is the teacher in a Degree College.  To be more precise petitioners no.1 to 4 are Readers while petitioners no.5 to 10 are Lecturers in various departments of the University of Allahabad.  Petitioner no.11 though not a Teacher in the University is interested in seeking appointment as Lecturer in the University of Allahabad.  The petitioner in petition no.36208 of 1999 is Reader in the department of Philosophy of the University of Allahabad.  The impugned advertisements issued by the University are sought to be quashed on the grounds, inter alia, firstly that the law of reservation as provided in the Uttar Pradesh Public Services (Reservation for Scheduled Casts, Scheduled Tribes and other Backward classes) Act, 1994 (for short 'U.P. Act no.4 of 1994') and the roster issued thereunder have not been applied to various posts covered by the impugned advertisements and secondly, that the advertisements have been issued without amending the first  Statute of the University in terms of the notification dated 24.12.1998 issued by University Grants Commission.  In respect of the post of Reader in the department of Chemistry it has been alleged that the advertisement is bad due to non-car marking of one post for the Physical Chemistry to be filled up from amongst eligible and qualified candidates working in the filed of Theoretical/Solid State Chemistry.

A counter affidavit on behalf of the University has been filed to which the petitioners have filed rejoinder affidavit.  Respondents  no.3 to 9 were impleaded by the Court's order dated 16.12.1999.  However, the newly impleaded respondents have not filed counter-affidavit.

Heard Shri R.N. Singh, learned Senior Advocate assisted by Shri G.K. Singh and Shri A.P.Sahi for the petitioners.  Dr. R.G.Padia, learned Senior Advocate assisted by Shri Prakash Padia, appeared for the University of Allahabad  and Shri L.P. Naithani, learned Senior Advocate assisted by Shri Piyush Shukla, for the newly impleaded respondents and perused the record.

The thrust of the submissions made by Shri R.N. Singh, learned Senior Advocate, appearing for the petitioners is that the post including those of Professors referred to in the impugned advertisements come within the purview of 'Public Services and Posts' within the meaning of the term defined in Section-2 (C) (iv) of the Act No.4 of 1994 and, therefore, the University was bound to specify the number of posts reserved for different categories of person in favour of whom the aforesaid Act has been enacted.  Therefore, the main question that requires determination by the Court is  whether the provisions of U.P. Act No.4 of 1994 are applicable in relation to posts particularly those of Professor covered by the impugned advertisements ?

Section 3(1) of the U.P. Act No.4 of 1994 visualises that in 'Public Services and Posts' there shall be reservation at the stage of direct recruitment to the extent of given percentage of vacancies to which recruitments are to be made in accordance with the roster referred to in sub section (5) in favour of the persons belonging to S.C., S.T. & O.B.C.  The expression 'Public Services and Posts' means the services and posts in connection with the affairs of the State and includes among others.  Services and Posts "in an educational institutions owned and controlled by the State Government or which receives grants-in-aid from the State Government including a University established by or under a Uttar Pradesh Act except an institution established and administered by minority referred to in clause (1) of Article 30 of the Constitution".  The plain language employed by the legislature in Section 2(c)(iv) and Section 3 of the U.P. Act No.4 of 1994 makes it abundantly clear that the services and posts in a University established by or under a Uttar Pradesh Act are covered by U.P. Act No.4 of 1994.   The post of Professor cannot be excluded from the purview of the Act except on pains of violating the Statute the validity of which is not under challenge.

In State of U.P. Vs. Dr. Dina Nath Shukla and others, JT 1997 (2) SC 467, the Supreme Court held in no uncertain terms, that the U.P. Act No.4 of 1994 is applicable even in relation to Services and Posts in all educational institutions owned, controlled maintained by the State or receives grants-in-aid from the Government including a University established by a U.P. Act at the stage of 'direct recruitment'  and further that "by issuing advertisement to fill up any post or service in any grade or cadre in the University educational institution established under a U.P. Act, the University educational institution should work out the post before hand and to make recruitment accordingly.  It may be observed that although in the cases of Dr. D.N. Shukla the Supreme Court held that if there is only one post in a Cadre Faculty, be it a post of Professor, Reader or Lecturer, necessarily all such single posts carrying the same scale of pay are required to be clubbed and the roster applied to such single post in terms of Section 3(5) of the U.P. Act of 1994 but this view has subsequently been overruled by a larger Bench holding therein that the law of reservation will not apply to a single post in a cadre.  However, the view that U.P. Act No.4 of 1994 is applicable to Services and Posts in a University still holds the field and is the law of the land having binding efficacy in view of Article 141 of the Constitution of India.

For the respondents reliance has been placed on a decision of this Court in Dr. Anand Prakash Mishra and others Vs. Chancellor, University of Allahabad and others, 1995 (3) ESC 348.  The said decision in out opinion has no application in that the controversy raised therein was altogether different than the one involved in the present case.  That apart the decision in the case of Dr. A.P. Mishra (supra) was set aside by the Supreme Court in appeal by Special Leave holding as under :-

". . . . . . . . . . . In the face of section 3 read with Section 15 (3) of the Act, any process of selection initiated after commencement of the Act (should)  be in conformity with the provisions  of the Act.  Necessarily, the vacancies existing as on that date shall require to be filled up applying sub-section(1) of Section 3 of the Act and the selection should be made in accordance wherewith".

Next decision on which reliance has been placed by the respondent is another decision of the Lucknow Bench of this Court in Dr. R.N. Pandey Vs. University of Lucknow and others (1996) 3 UPLBEC 1869.  Though the question involved in that case was whether the law of reservation was applicable to a single post in a cadre yet one of the points formulated for determination by the Bench was as to "whether the provisions of U.P. Act No.4 of 1994 does not apply to the case of the University to which U.P. State Universities Act applies ?"  It was held therein that the U.P. Act No.4 of 1994 "shall not apply to the selection for the posts of Professor, Reader and Lecturer under the U.P. State Universities Act."  The reason  given in support of the conclusion was that since State Universities Act written test or interview is not the pre-requisite condition for selection of Professor, reader and Lecturer, the provision of  U.P. Act No.4 of 1994 will not apply in view of the provision of Section 15 of this Act".  The aforesaid reasoning given in Dr. R.N. Pandey's case for non applicability of U.P. Act No.4 of 1984 is fallacious, if we may say so with utmost humility and respect, for Section 15 of U.P. Act No.4 of 1994 deals with a different situation and excludes the applicability of the Act to the cases in which selection process had been initiated before the commencement of the Act.  It does not provide that the Act will not apply to Services and Posts to which appointments are made by means of written test or interview.  In any case the view taken in Dr. R.N. Pandey's case is no longer a good law in view of the pronouncement of Supreme Court in Dr. Dina Nath Shukla's case and in the case of Dr. A.P. Mishra (supra).

The next decision on which reliance has been placed by the learned counsel for the respondents in support of their contention that U.P. Act No.4 of 1994 has no application to the post of Professor in State Universities is Dr. Vipin Agrawal Vs. University of Allahabad and other, 1997 (3) ESC 1710 (Alld).  The question raised therein was whether the posts of Professor, Reader and Lecturer of the State Universities fall within the purview of  "Services and Posts" within the meaning of the term defined in Section 2 (c)(Iv) of the U.P. Act No.4 of 1994.  It was held therein as under :-

"32.  On the strength of the observation of the Supreme Court, it was argued and perhaps rightly that Act No.4 of 1994 was made applicable to the selection in the State Universities.

23.  It may now be pointed out that after having noted the observation of the Supreme Court in Dr. D.N. Shukla's case as well as Dr. Anand Prakash Mishra's case (supra), it is impossible for this Court, to decide the issue again which have already been decided by the Supreme Court.  It is further pointed out that the advertisement was not challenged before the Supreme Court in Dr. D.N. Shukla's case.  Thus it is impossible to accede to the request of the leanred counsel for the petitioners that despite the decision in Dr. D.N. Shukla's case and Dr. Anand Prakash Mishra's case it should be held that Act No.4 of 1994 will not apply to the selection of Readers and Lecturers of the University."

In Dr. Vipin Agrawal's case a Division Bench while holding that the U.P. Act No.4 of 1994 has been made applicable to the selection of teachers in the State Universities, has excluded the post of Professor from the purview of the Act.  It is difficult to agree with the proposition that though the post of Reader and the post of Lecturer in the State Universities come within the purview of U.P. Act No.4 of 1999 the post of Professor does not.   The plain language of the Act does not support the conclusion and the direct decision of the Supreme Court in Dr. Dina Nath Shukla contradicts it.

In Dr. Ram Niwas Pandey the three posts of Professor which were the subject matter of the advertisement impugned in that case, were in three different subjects and departments and hence not liable to be fused together for the purpose of applying the law of reservation as provided in the U.P. Act No.4 of 1994.  The High Court therein held that the U.P. Act No.4 of 1994 would not apply to "the selection for the post of Professors, Readers and Lecturers under the U.P. State Universities Act 1971" and on the matter being taken to the Supreme Court in Special Leave Petitions No.28623 - 28626 of 1996, the Supreme Court while dismissing the SLPs held 'in the facts and circumstances' of the case, that no exception could be taken to the view taken by the High Court regarding 'the appointment of the respondent-Professors'' therein.  The dismissal of SLPs in the fact situation of that case is not tantamount to a declaration of law that the U.P. Act No.4 of 1994, the validity of which is not under challenge will not apply to the post of Professor in the State Universities.  The words 'relating to the appointment of the respondent-Professors' were perhaps used since the respondents whose appointments were under challenge before the Supreme Court happened to be 'Professors' and no exception was taken to the High Court's view, perhaps due to the reasons that the law of reservation could not be applied by clubbing and fusing single post of Professor of 3 different disciplines.

In Dr. (Smt.) Krishna Srivastava Vs. State of U.P. and others (Writ Petition No.2723 of 1995) decided on 20.2.1998 a Division Bench of this Court has noticed that the decision in Dr. Vipin Agrawal omitted to note the expression 'Professors'  in the case of Dr. D.N. Shukla in which no distinction has been made by the Apex Court while holding that U.P. Act No.4 of 1994 is applicable in the case of University of Allahabad.  Yet the Division Bench in Dr. (Smt.) Krishna Srivastava (supra) found no reason for disagreement with the reasoning given in the case of Dr. R.N. Pandey and expressed agreement with ratio decedent of the said case.  We find it difficult to fall in line with the view so expressed in that case.

Nothing in Indra Sawhney Vs. Union of India & others, 1992 Supp.(3) SCC 217 leads to invalidation of the U.P. Act No.4 of 1994 and in fact the validity of the Act in relation to its applicability to various posts including the post of Professor in the State Universities was not questioned during the course of arguments.  The Division Bench decisions in Dr. Vipin Agrawal, Dr. R.N. Pandey and Dr. (Smt.) Krishna Srivastava (supra) in so far as it has been held therein that the U.P. Act No.4 of 1994 would not apply to the post of Professor in the State Universities being contrary to the express and unambiguous language of the statue and the decision of the Supreme Court in Dr. D.N. Shukla, require reconsideration.  Accordingly, we consider it to be apt and proper to refer the following questions for consideration by a larger bench for an authoritative pronouncement :-

(i)whether the post of professor in the State Universities comes within the purview of "Services and Post" as defined in section 2(c) (iv) of the U.P. Act No.4 of 1994 ?

(ii)whether the Division Bench decision of the Court in Dr. Vipin Agrawal's case in so far as it excludes the post of professor in the State Universities from the purview of U.P. Act No.4 of 1994 lays down the correct law ?

 

In view of the above it is not necessary, at this stage, to go into the merits of the second point for that may be considered after the receipt of the answer by the larger Bench on the questions aforesaid.

Pending further order the respondent-University shall have the liberty to make ad hoc appointments on the posts in question by following the law of reservation as prescribed in the U.P. Act No.4 of 1994.  The petitioners and respondents may also stake their claims for ad hoc appointments, which may be made pursuant to this order without prejudice to their rights and contentions.

Let the papers be laid before the Hon'ble Chief Justice for constituting a larger Bench for consideration of the questions referred to hereinabove.

Irshad

17.4.2000


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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