Allahabad High Court
Dr. Afsar Ali vs State Of U.P. And 4 Others on 28 July, 2015
Bench: Arun Tandon, Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 9
Case :- WRIT - A No. - 23943 of 2014
Petitioner :- Dr. Afsar Ali
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- S.K. Singh 'Paliwal',Ashok Khare
Counsel for Respondent :- C.S.C.,Bheem Singh,C.B.Gupta,Gautam Baghel,J.P. Singh,M.D.Singh Shekher,Mr. Ajit Kumar Singh,Neeraj Tripathi,S.K.S.Paliwal
Hon'ble Arun Tandon,J.
Hon'ble Mahesh Chandra Tripathi,J.
1. The petitioner before this Court seeks quashing of the order of the Chancellor of Veer Bahadur Singh Purvanchal University, Lucknow (hereinafter referred as the University) dated 17.4.2014 wherein in exercise of powers under Section 68 of the U.P. State Universities Act, 1973 (hereinafter referred as the Act) the Chancellor has been pleased to hold that the Selection Committee constituted for appointment on the post of Principal of Shibli National Post Graduate College, Azamgarh (hereinafter referred as the College) was not inconformity with the provisions of Section 31 (4) of the Act and therefore, the selections held, were bad.
2. Facts in short leading to the present petition are as follows.
3. The College in question is a Post Graduate Degree College affiliated to the University. It is stated to be a recognized minority institution. The post of Principal in the college fell vacant due to retirement of the earlier incumbent. The Committee of Management of the College resolved to make direct appointment on the post of Principal, accordingly an advertisement was published in newspapers on 13.2.2013, 14.2.2013 and 15.2.2013.
4. The Selection Committee for the post of Principal of a recognized and affiliated Minority Degree College, is provided for under Section 31 (4) of the Act. For ready reference, Section 31 (4) of the Act, in so far as it is relevant for our purpose, is being quoted herein below:-
"31 Appointment of Teachers.-(4) (c). The Selection Committee for the appointment of the Principal of an affiliated or an 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)one of the Deans or Professors of those Faculties which comprise subjects taught in the college, to be nominated by the Vice Chancellor;
(iii)one member of the Management nominated by the Management; and
(iv)two experts to be nominated by the Vice Chancellor.
Provided that in the case of appointment of the Principal of an affiliated college, the Dean of Faculty shall not sit in the Selection Committee, if he is himself a teacher of that college.
Provided further that in the case of colleges established and administered by a minority referred to in clause (1) of Article 30 of the Constitution of India, the experts shall be nominated by the Management from out of a panel of five experts by the Management suggested and approved by the Vice Chancellor.
Provided also that in the case of colleges referred to in the preceding proviso, the Dean or Professor who shall be the member of the Selection Committee under sub-clause (ii) shall also be nominated by the Management from out of a panel of five Deans or Professors suggested by the Management and approved by the Vice Chancellor and if the requisite number of such Deans or Professors is not so available, the panel may include the names of Principals of affiliated or associated colleges."
5. From a simple reading of the aforesaid provisions, it is apparent that the Selection Committee for the post of Principal of minority institution is to comprise of (a) Head of the Management or a member of the Management nominated by him to the Selection Committee who shall be the Chairman thereof, (b) one Dean or Professor to be nominated by the Management from out of a panel of 5, Deans and Professors as suggested by the Management and approved by the Vice Chancellor, and in case the requisite number of persons are not available in that category, then the panel may include the names of Principals of affiliated or associated colleges. (c) One member of the Committee of Management is to be nominated as member and (d) two experts shall be nominated by the Management from out of the panel of five persons as suggested by the Management and approved by the Vice Chancellor.
6. In the opinion of the Court, so far as the appointment of experts covered by clause (d) aforesaid to the Selection Committee to be constituted for the appointment on the post of Principal of the College is concerned, a panel of five persons, (subject experts) is to be suggested by the Committee of Management to the Vice Chancellor. The Vice Chancellor is to approve the said panel of the five persons. Thereafter the Committee of Management gets a right to choose any two out of these five approved experts to act the member of the Selection Committee.
7. Similarly in respect of Deans or Professors to be appointed to the Selection Committee, a panel of five names of the category of Deans/Professors with reference to subjects taught in the college is to be forwarded by the Committee of Management to the Vice Chancellor, who shall approve the same and then the Management will have the option to appoint any one out of these five within the category of Deans and Professors to the Selection Committee. In respect of Deans and Professors, it has been further provided that in case the requisite number of such persons are not available namely five then names of Principals of affiliated or associated Degree Colleges may also be included in the panel to be suggested by the Committee of Management to the Vice Chancellor.
8. From the order of the Chancellor impugned in the present writ petition, we find that a categorical finding of fact has been recorded on the basis of material adduced by the parties, that then President of the Committee of Management of the institution forwarded a letter dated 13.2.2012 to the Vice Chancellor for approving the panel of five persons within the category of subject experts. This letter of the President dated 13.2.2012 has not been enclosed along with the writ petition but a copy of the same has been provided to us in the open Court by learned counsel for the petitioner, today which is taken on record. From the letter, we find that the President has requested the Vice Chancellor to approve the panel of experts as per the resolution of the Committee of Management passed in its meeting dated 29.10.2011. The resolution dated 29.10.2011 is enclosed at page 152 of the present writ petition. The relevant portion of the resolution at agenda no.9 reads as follows:-
Agenda no.9
To constitute particular committee as envisaged in statutes University Act
The selection committee for appointment of teaching staff in accordance with the statutes University Act was constituted consisting of the following:
1. President or his nominee
2.Principal and his nominee from the department concerned.
3. Two experts proposed by management and approved by the Vice Chancellor.
For the appointment of Principal the following committee was constituted.
1. Head of the management or a member of management nominated by him who shall be the Chairman.
2. One of the Dean/Professor of those faculties, which comprise subject taught in the College.
3. Mr. Faheem Ahmad Advocate as one of the members of the management.
4. Two experts nominated by management out of a panel of three experts suggested by management and approved by Vice Chancellor.
9. From the reading of the resolution, it is apparent that the Committee of Management had not recommended the name of any person to act as experts, for the approval of the Vice Chancellor. As a matter of fact, from the entire records appended to the writ petition there is no resolution of the Committee of Management approving the names of five persons to be included in this panel of experts as contemplated by Section 31 (4) (c) of the Act. Even the letter of the President dated 13.2.2012 does not refer to the names of any such five persons to be included in the panel nor it talks of any enclosure being appended to the letter.
10. In view of the aforesaid facts, we are satisfied that the finding of fact recorded by the Chancellor to the effect that that there has been non-compliance of the statutory provisions of Section 31 (4) (c) of the Act in the matter of constitution of the Selection Committee is inconformity with law and warrants no interference in exercise of jurisdiction under Article 226 of Constitution of India. Once it is found that the Selection Committee for appointment on the post of Principal has not been constituted in accordance with the statutory provisions applicable, the selections held for the post of Principal must fall automatically inasmuch as an incompetent Selection Committee cannot hold selections for the post of Principal.
11. At this stage, Shri Ashok Khare, Senior Advocate, appearing for the petitioner submits that the panel, which was approved under the letter of the Vice Chancellor dated 20.4.2012 at page 198 of the paper book, was subsequently accepted/approved by the Committee of Management in its meeting dated 22.4.2012 (Annexure-23 of the writ petition). The first two persons mentioned in the panel were called to participate in the Selection Committee.
12. The contention raised by Shri Ashok Khare does not appeal to us. We may reproduce the letter of the Vice Chancellor dated 20.4.2012, which reads as follows:-
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13. The resolution of the Committee of Management dated 22.4.2012 referred to by Shri Ashok Khare reads as follows:-
Agenda No.3
To consider the panel of experts for the appointment of permanent Principal
The panel of the experts as approved by the V.C. vide his letters dated No.11276, 20.4.2012 was presented for consideration and the said was accepted unanimously.
14. From the reading of the aforesaid, it would be further clear that neither the letter of Vice Chancellor refers to the names of experts nor the resolution of Committee of Management refers to any names of experts so approved.
15. It is, therefore, clear that the panel of five experts was never approved by the Vice Chancellor on the recommendation of the Committee of Management. None of the recommendation of the Committee of Management records the names of experts, which were to be forwarded to the Vice Chancellor for approval. Mere sending of the letter will not satisfy the requirement of Section 31 (4) (c) of the Act inasmuch as the panel has to consist of specific names of the persons to be included therein.
16. We may record that if law requires something to be done in a particular manner it has to be done in that manner or not at all. Privy Council in Nazir Ahmad v. King Emperor; AIR 1936 PC 253 laid down the dictum that when a statute requires a thing to be done in a particular manner, it must be done in that manner or not at all. The Hon'ble Apex Court has reiterated and followed the aforesaid dictum in a catena of cases and one of the recent judgment in Commissioner, Income Tax, Chandigarh v. Pearl Mechanical Engineering and Foundry Works Pvt. Ltd. A Constitution Bench of the Hon'ble Apex Court in Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and Ors. reaffirmed the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the same itself.
17. At this stage, Shri Ashok Khare, learned counsel for the petitioner suggested that the provisions of Section 31 (4) of the Act have to be read in the manner so as to be inconformity with the fundamental right guaranteed under Article 30 of Constitution of India. There should be nominal control of the State in the mode and manner of selection of the Principal and Teachers of the minority institution. He relied upon judgments of Hon'ble Supreme Court in N. Ammad vs. Manager, Emjay High School and others (1998) 6 SCC 674; Sheel Chand vs. Prakash Chand (1998) 6 SCC 683; R. Sulochana Devi vs. D.M. Sujatha and others (2005) 9 SCC 335 and in Secretary, Malankara Syrian Catholic College vs. T. Jose and others (2007) 1 SCC 386.
18 This Court at the very outset enquired from the counsel for the petitioner as to whether he proposed to challenge the vires of Section 31 (4) of the Act on the plea that it trenches upon the constitutional fundamental right guaranteed under Article 30 of Constitution of India, Shri Ashok Khare replaced by stating that no such prayer has been made in this writ petition.
19. If the petitioner has chosen not to challenge the vires of Section 31 (4) of the Act, then the selection for the post of Principal of affiliated Degree College belonging to minority character has to be made inconformity thereof as that is the law of the land applicable. The Committee of Management of the institution has also not come forward to challenge the vires of Section 31 (4) of the Act.
20. The writ petition is dismissed. Interim order, if any, stands discharged.
21. The impleadment application filed on behalf of newly elected Committee of Management is taken on record. No order is required to be passed thereon in view of the final decision of the writ petition itself.
Order Date :- 28.7.2015
RKP
(Mahesh Chandra Tripathi,J.) (Arun Tandon,J.)
