HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.29 Civil Misc.Writ Petition No. 373 of 2010 Dr. Shiv Kumar Singh vs State of U.P. & others. Hon'ble Vineet Saran,J.
Hon'ble Ran Vijai Singh,J.
On vacancies having arisen on the post of Assistant Professor in the Sardar Vallabh Bhai Patel University of Agriculture & Technology, Modipuram, Meerut, an advertisement was issued by the University to fill up such vacancies. In response to the same, the petitioner as well as several other persons applied for the post of Assistant Professor (Genetics & Plant Breeding). The petitioner was found eligible to the post, as he possessed the essential qualifications. After following the selection process and on the recommendation of the selection committee, the petitioner, as well as two other persons were appointed on the post of Assistant Professor ( Genetics & Plant Breeding.), who joined on 24.03.2005. However, a complaint was made against the said appointment of the petitioner by respondent no.5 to the effect that the petitioner did not possess the essential qualification of National Eligibility Test (herein after referred to as NET). On such complaint, the Chancellor called for comments from the University as well as the petitioner, who filed the same. After considering the case of the parties, the Chancellor vide its order dated 29.12.2009, cancelled the appointment of the petitioner on the ground that he did not possess the essential NET certificate. Challenging the said order, this writ petition has been filed.
This Court, vide interim order dated 07.01.2010, stayed the operation of the order dated 29.12.2009, passed by the Chancellor, in so far as it related to the petitioner on the basis of which the petitioner is continuing in service.
We have heard Sri P.S.Baghel, learned Senior Counsel, assisted by Sri Gautam Baghel on behalf of the petitioner as well as learned Standing Counsel appearing for the State respondent, Sri Neeraj Tripathi for the Chancellor and Sri P.K.Ganguly for the University, and have perused the pleadings of the parties.
The submission of Sri Baghel is that as per statute of University, NET is not an essential qualification for appointment of Assistant Professor (Genetics and Plant Breeding) of the Agriculture University. It is submitted that though the same may have been prescribed in the instructions issued by the I.C.A.R. but unless the same are incorporated in the University statute, they would not be enforceable. It is also submitted that the selection committee, which considered the case of the petitioner, comprised of experts, including two nominees of the Chancellor, who all had found the petitioner to be duly qualified for appointment to the post of Assistant Professor, and thereafter recommended the name of the petitioner for such appointment. Learned Counsel for the petitioner also submits that the petitioner is a Ph.D. and in absence of there being any specific requirement of NET Certificate provided under the Statute / rules of recruitment for the post in question, the petitioner could not be disqualified only on this ground. He has also submitted that the U.G.C. and I.C.A.R. cannot be put on the same footing as I.C.A.R. is only a registered society under the Societies Registration Act whereas U.G.C. is a statutory body. It is also submitted by the learned Senior Counsel for the petitioner that the University, in its reply (comments before the Chancellor on the complaint of respondent no.5) had taken a stand that the petitioner was duly qualified and the matter was examined by the selection committee, in which two nominees of the Chancellor were present and in pursuance thereof, the petitioner as well as the other two persons were appointed, who are continuing to work.
In support of his submissions with regard to the effect of non insertion of NET qualification in the statute, the learned counsel for the petitioner has placed reliance on two Division Bench decisions of this Court, namely, Dr. Ravindra Kumar vs State of U.P. and others, 2008 (8) ADJ 484 and Prof. Chandra Prakash Jha and others vs Vice Chancellor, Allahabad University and others, 2000 (2) UPLBEC 1134 in which it has been laid down that the absence of NET certificate will not be fatal, unless the said requirement (of NET) is inserted in the Statute governing the selection. Attention has also been invited towards the fate of the decision of the Special Leave to Appeal (Civil) No.6267 of 2009 filed against the judgement of Dr. Ravindra Kumar (supra) where the Apex Court has dismissed the S.L.P. On 27.09.2010. In the submission of Sri Baghel the dismissal of S.L.P. will amount affirmation of the judgement of this court and the respondent cannot disqualify the petitioner for not having of NET certificate.
Sri P.K.Ganguly, learned counsel for the respondent University has submitted that the requirement of NET Certificate under eligibility criteria for appointment on the post of Assistant Professor was made applicable by the I.C.A.R. in the year 2003. It is note-worthy that no such communication is there on record. It is also not disputed by Sri Ganguly that the requirement of NET certificate has not been incorporated in the University Statutes / Rules governing appointment of Assistant Professor. He has, however, submitted that as the petitioner was not having the NET certificate therefore, the Chancellor has passed the impugned order, which is fully justified and needs no interference.
Sri Neeraj Tripathi, learned counsel for the Chancellor has adopted the argument of Sri Ganguly and submitted that in the absence of the petitioner having NET qualification, he could not have been selected in view of the Apex Court decision University of Delhi vs Raj Singh and others 1994 (3) Supp. SCC 516.
We have heard learned counsel for the parties and have perused the record.
So far as the submissions of Sri Baghel with regard to the affirmation of the judgement by the Apex Court in the case of Dr. Ravindra Kumar (supra) is concerned, we find that the Apex Court has dismissed the S.L.P. in liminine without assigning any reason and discussing anything about the merit and demerit of the judgement of the Division Bench of this Court but it has merely refused to entertain the S.L.P. In such circumstance, where the S.L.P. was dismissed in limine, it has been held that such order will not amount affirmation of the judgement of the High Court, as the judgement of the High Court, had not merged in the judgement of Supreme Court. While dealing with such situation, in the case of V.M.Salgaocar & Bros. Pvt Ltd. Vs Commissioner of Income Tax J.T. 2000 (4) SC 473, the Apex Court has observed as under:-
" When a special leave petition is dismissed, this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the Court means is that it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal is dismissed through by a non-speaking order. Here the doctrine of merger applies. In that case the Supreme Court upholds the decision of the High Court or of the Tribunal. This doctrine of merger does not apply in the case of dismissal of special leave petition under Article 136. When appeal is dismissed, order of the High Court is merged with that of the Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our mind that an order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in merger of the order impugned into the order of the Supreme Court."
This view has again be reaffirmed by the Apex Court in the case of Kunhayammed & Ors. Vs State of Kerala & Another J.T. 2000(9) SC 110. In view of the law laid down by the Apex Court we are unable to agree with the submission of learned counsel for the petitioner that the Apex Court has affirmed the judgement of this court in the case of Dr. Ravindra Kumar (supra).
However, it may be observed that it is settled position that every appointment where the payment is made through State Exchequer is made under some relevant statute/rule governing the condition of service/mode of recruitment etc. Here in the present case, the appointment has been made according to the Statute of the University where the qualification for appointment on the post in question has been prescribed and in the qualification clause, there is no requirement of NET certificate for appointment on the post of Assistant Professor. In the impugned order of the Chancellor no infirmity has been pointed out with respect to the petitioner's appointment except that the petitioner does not possess NET certificate. It is not in dispute that petitioner has applied for the selection on the aforesaid post of Assistant Professor pursuant to the advertisement and as per statute of the University and the condition mentioned in the advertisement, the petitioner did possess the required qualification for such appointment.
It is settled law that if a Statute provides to do a thing in a particular manner then that thing has to be done in that very manner. In case the petitioner was not having requisite qualification as provided under the Statute or in the advertisement, certainly it would have been a case where the petitioner could be held ineligible for appointment. But here the case is different, the petitioner possess essential qualification as provided under the relevant Statute of the University and the advertisement inviting the application for the appointment on the aforesaid post of Assistant Professor. The qualification prescribed by I.C.A.R. may be there but unless it is inserted in the Statute of the University, that can have no binding force. In the event of non insertion of the said qualification in the statute, the I.C.A.R. may take action against the University (if it is so permissible) but unless the alleged instruction of I.C.A.R. of the year 2003 ( which has not even been brought on record), is inserted in the Statute, that will not vitiate the selection in question and the petitioner's right to continue on the post would be unaffected, as his selection was made as per prescribed qualification given in the Statute. The view taken by us finds support from the Division Bench judgement of this Court in the case of Prof. Chandra Prakash Jha and others vs Vice Chancellor, Allahabad University and others (2000) (2) U.P.L.B.E.C. 1134 where this Court has held as under:-
" It is settled law that delegated legislation is as binding as the parent legislation unless there is conflict between the two. We do not find any conflict . In fact Sections 49 (d) and (e) of the Act states that the statutes of the Universities can provide the terms and conditions of service of a person appointed to a post under the University. In our opinion Section 49 (d) and (e) includes the power to fix the age of superannuation of the University teachers. Since the age of superannuation has been fixed by Statute 16, it can only be altered by amending the Statute. In the system of administration we have adopted from the British, the executive is subordinate to the legislature. Hence in our opinion the Central Government has no power to issue any executive order abrogating or modifying any provision in the U.P. State University Act or the statutes made thereunder. In our opinion if any direction of the U.G.C. had not been complied with by the University concerned, the U.G.C. can withhold or reduce the financial assistance given to that university, but neither the Central Government nor the U.G.C. has any power to amend the Act or statute. Under Section 50 (1) the State Government could amend the first statute made by the State Government at any time upto 31.12.1990, and the Executive Council under Section 50(2) can amend the Statute, thereafter. Under Section 50(4) the amendment in the statute has to be submitted to the Chancellor who may assent to it or withhold his assent therefrom or remit it to the Executive Council for further consideration. Hence any amendment to Statute 16.24 changing the age of superannuation of University teachers can only be done in accordance with Section 50 and by the authority mentioned in Section 50. No such amendment can be made by any other authority or, in any other manner. If Sri Upadhyaya's submission is accepted it will logically lead to the result that the Central Government or U.G.C. can issue a direction to the University not to obey or comply with the Act or statutes, and thus by an executive order the University statute ( which is a piece of delegated legislation) can be abrogated or modified. We cannot accept such submission."
In another decision of this Court in the case of Dr. Ravindra Kumar Vs State of U.P. And Others 2008 (8) ADJ 484 (DB) this Court has taken the same view by observing as under:-
"It is no doubt true that since few years back in almost all the Universities of State of U.P., NET Certificate was made essential qualification for appointment on the post of lecturers of the University and for some time NET Certificate was made optional or alternative qualification at part with or equivalent to the Ph.D. degree for appointment on said post, but unless the same is made applicable by statute or rules of recruitment for the post in question, the same cannot apply automatically in respect of selection in question. Therefore, in our opinion, in absence of any such statute or rules of recruitment for the post in question, NET Certificates possessed by Dr. Udai Bir Singh in Animal Genetics and Breeding and in Poultry Science cannot be treated to be either at par with or equivalent to Ph.D. degree in which he has obtained the aforesaid certificates or at part with the Ph.D. degree in Animal Science as prescribed educational qualification for the said post as shown in advertisement in question."
As already mentioned herein above, challenging the said order, Special Leave to Appeal (Civil) No. 6267 of 2009 was filed before the Apex Court, which was dismissed on 27.09.2010.
Learned counsel for the respondent has heavily placed reliance upon the judgement of Apex Court in the case of University of Delhi vs Raj Singh and others (supra). We have gone through the Apex Court judgement in the aforesaid case where it was contended on behalf of the Delhi University that the regulations framed by the U.G.C. were not mandatory in character and only directory in nature and its imposition on the University will amount transgression of power upon the autonomy of the Delhi University. In that eventuality the Apex Court has held that the said regulations have been framed while exercising power under Entry 66 of the Union list ( List one ) of the Constitution of India, therefore, they are mandatory in character and hold the field so far as determination of the qualification is concerned. Here in this case, the University in question has been established under the provisions of Uttar Pradesh Krishi Evam Progyogik Vishwavidyalaya Adhiniyam, 1958 (hereinafter referred to as Act of 1958) and in the submissions of learned counsel for the petitioner, the I.C.A.R. is only a registered society and it cannot be treated at par with U.G.C., which is a statutory body. The instructions of I.C.A.R.,as mentioned in the Chancellor's order, have not been brought on record. Nothing has been brought on record on the basis of which we can form a definite opinion as to whether the instructions are statutory in nature and whether its origin is traceable under Entry 66 of list one. Therefore, the judgement relied by learned counsel for the respondent in the case of University of Delhi (supra), which is not an University under the Act of 1958, is distinguishable on facts.
So far as the decisions rendered by this Court in the case of Prof. Chandra Prakash Jha and Dr. Ravindra Kumar (supra) are concerned, both the judgements being the judgement of coordinate Bench of this Court, are binding on us. Therefore, in view of the foregoing discussions we are of the view that the order passed by the Chancellor is unsustainable in the eye of law.
In the result the writ petition succeeds and is allowed. The impugned order dated 29.12.2009 is hereby quashed. Since the petitioner has been continuously working on the post from the date of his initial appointment i.e., 24.3.2005, we direct that he shall be treated to be in continuous service from the date of his initial appointment,ignoring the order dated 29.12.2010, passed by the Chancellor and he shall be entitled to all consequential benefits.
No order as to costs.
Dt.19.07.2011
PKB
W.P. 373 of 2010
(Ran Vijai Singh,J.) ( Vineet Saran,J.)