Dr.Anish Khanna vs The Chancellor University ...
2011 Latest Caselaw 4384 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. 1
 

 
Writ Petition No. 109 (S/B) of 2001
 

 
Dr. Anish Khanna
 
Vs.
 
The Chancellor, University of Lucknow & Ors.
 
With
 
Writ Petition No. 110 (S/B) of 2001
 

 
Dr. Jamal Masood
 
Vs.
 
The Chancellor, University of Lucknow & Ors.
 
And
 
Writ Petition No. 111 (S/B) of 2001
 

 
Dr. Sheetal Prasad Patel
 
Vs.
 
The Chancellor, University of Lucknow & Ors.
 
***************
 
Hon'ble Pradeep Kant,J.

Hon'ble Ritu Raj Awasthi,J.

These are the three writ petitions filed by Dr. Anish Khanna, Lecturer, Dr. Jamal Masood, Assistant Professor and Dr. Sheetal Prasad Patel, Assistant Professor, challenging the same orders passed by the Chancellor dated 6th of January, 2001 by means of which their appointments on the post of Lecturer and Assistant Professor respectively in the Department of Social Medical & Preventive Medicines (hereinafter referred to as the 'Department of SPM') in the King George Medical College presently known as Chhatrapati Sahuji Maharaj Medical University, Lucknow have been cancelled.

Since common questions of law and fact are involved, therefore, we proceed to decide all the aforesaid writ petitions by a common order.

Heard Sri S.K. Kalia, learned Sr. Advocate appearing for the petitioners, Sri Alok Mathur appearing for the Chancellor and Sri Abhishek Yadav appearing for the private-respondent.

On 12th of January, 1998, the then King George Medical College a constituent college of the Lucknow University issued an advertisement inviting applications for appointment on six posts of Assistant Professor/Lecturer in the Department of SPM vide advertisement No. 98 of 2002. Out of Six posts, two posts were reserved for backward classes and one post was reserved for SC/ST category. Dr. Anish Khanna, Dr. Jamal Masood and Dr. Sheetal Prasad Patel, applied for being appointed on the posts so advertised.

Along with the petitioners, certain other persons, including the private respondent Dr. Ashok Kumar Yadav, also applied in pursuance of the advertisement.

The meeting of the selection committee was held on 7th of May, 1999 wherein the petitioners as well as the private respondent also appeared along with certain other candidates. As a result of the selection, the petitioners were declared successful but the private respondent, namely Dr. Ashok Kumar Yadav, could not compete in the selection with the petitioners. Consequence to their selection, the Executive Council of the University appointed the petitioners vide appointment order dated 16th of June, 1999 and separate appointment letters were also issued to them. They joined their respective post of Lecturer and Assistant Professors, respectively, on that very date i.e. on 16th of June, 1999.

It was after a lapse of about three months, the petitioners received a letter from the Chancellor of the University of Lucknow wherein they were informed that a representation under Section 68 of the State University Act has been preferred by Dr. Ashok Kumar Yadav on 1st of July, 1999 and the petitioners were required to submit their reply.

The main plea of the representationist, namely Dr. Ashok Kumar Yadav, was that the Department of SPM was an upgraded department, therefore, in terms of Section 31(4)(a)(iv) of the Act, the selection committee would be constituted including one nominee each from the Central Government and the State Government which was not done in the instant case and therefore, the selection itself was bad.

The petitioners submitted their reply refuting the aforesaid allegation saying that the Department of SPM was not an upgraded department and that it was a regular department of the King George Medical College therefore it was not necessary to constitute the selection committee in terms of the aforesaid provision of the statute.

The Lucknow University also submitted reply wherein it categorically refuted the aforesaid claim of the representationist and asserted that the Department of SPM is not an upgraded department nor the committee was required to be constituted in terms of the aforesaid statute.

The Chancellor, however, on the basis of a 'Forward' note prepared by one Sri K.P. Bhargava, in the souvenir of the University since has mentioned that the Department of SPM has been upgraded in the year 1972 up to Post Graduate classes, came to the conclusion that it was an upgraded department and therefore, the selection committee should have been comprised of one nominee each from the Central Government and the State Government.

After recording the aforesaid finding, the Chancellor has set aside the appointments of all the three petitioners vide impugned orders dated 6th of January, 2001, therefore, they have filed the writ petitions, separately.

Learned counsel for the petitioners has drawn the attention of the Court towards Section 66 of the State University Act which reads as under:

"66. No act or proceeding, of any authority or body of the committee of the University shall be invalid merely by reason of -

(a) any vacancy or defect in the constitution thereof, or

(b) some person having taken part in the proceedings who was not entitled to do so, or

(c) any defect in the election, nomination or appointment of a person acting as member thereof, or

(d) any irregularity in its procedure not affecting the merits of the case."

He says that any defect in the constitution of the selection committee would not make the selection invalid.

Relying upon the aforesaid provision, he has submitted that even assuming that it was necessary to include one nominee each of the Central Government and the State Government, though not accepted, still once the selection committee has deliberated upon and the result has been declared, the failure on the part of the University in getting the committee constituted in the like manner would stand protected under Section 66 of the Act.

He has further submitted that the private-respondent having participated in the selection before the same very selection committee without raising any objection/protest cannot be allowed to raise a grievance regarding the constitution of the committee merely because he remained unsuccessful in the selection. Pressing upon the two arguments, he has submitted that the Chancellor has erred, apparently, in interfering with the order of the appointments without dealing with the aforesaid points.

Sri Abhishek Yadav, who appears for the private respondent does not dispute that these pleas have not been considered by the Chancellor and also that Dr. Ashok Kumar Yadav had appeared before the same very selection committee and had taken chance of being appointed but he remained unsuccessful. His submission is that on coming to know, after the selection committee had met, that the selection committee was not properly constituted, he preferred a representation before the Chancellor.

Having considered the arguments advanced and after going through the orders passed by the Chancellor, it is clear that there was no material before the Chancellor worth being relying upon to come to the conclusion that the Department of SPM was an upgraded department. A forward note of the souvenir cannot be made the basis for deciding the issue of such a serious nature, more so, when it did not disclose the source from where the said information was given or mentioned in the said forward note. This becomes more important when the University itself had taken a clear stand before the Chancellor that it was not correct to say that the Department of SPM was an upgraded department. In the absence of any cogent and admissible evidence being brought on record, contrary to the statement made by the University, there was no occasion for the Chancellor to take a different view.

This apart, the fact remains that the private respondent participated in the selection before the same very selection committee without any protest and when he remained unsuccessful, he preferred the said representation. The candidate who has chosen to take a chance of selection before the committee so constituted cannot be allowed to turn round and challenge the selection on the basis of the illegal formation of the committee simply because he could not be successful. In the case of Chandra Prakash Tiwari Vs. Shakuntala Shula reported in 2002 (6) SCC 124, the Apex Court has held as under:

"34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seems to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not "palatable" to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process."

Imagine a situation if the private respondent had been selected, he would not have challenged the constitution of the selection committee. Thus having taken chance before the selection committee without any protest about the constitution of the committee, it was not open for him to make a representation under Section 68 of the Act.

The petitioners have been allowed to continue in service in terms of the interim order passed by this Court and they are still working on the post of Lecturer/Assistant Professors on which they were appointed, we do not find any ground to uphold the orders passed by the Chancellor.

For reasons aforesaid, the impugned orders dated 06.01.2001 passed by the Chancellor are set aside and the writ petitions are allowed.

In case, the petitioners are entitled to any promotion or other consequential benefits for the period of their service which they have rendered that would also be considered by the University, expeditiously.

[Ritu Raj Awasthi, J.] [Pradeep Kant, J.]

Order Date : 6th of September, 2011

Santosh/-