K.S. Jawatkar vs Chancellor Jawaharlal Nehru ...
2012 Latest Caselaw 4117 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Date of decision: 13th July, 2012
+                            LPA NO.93/2012 & CM APPL.2285-86/2012

%        K.S. JAWATKAR                               .......        Appellant
                      Through:          In person.

                                   Versus

    CHANCELLOR JAWAHARLAL NEHRU UNIVERSITY
    & ORS.                                ..... Respondents
                  Through: Mr. S.C. Dhanda, Advocate for
                           JNU.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW


RAJIV SAHAI ENDLAW, J.

1. This intra court appeal impugns the judgment dated 16 th September,

2011 of the Learned Single Judge disposing of WP(C) No. 2044/1992 and

dismissing WP(C) No.911/2007, both preferred by the appellant. Though

two separate appeals ought to have been filed but we have, with consent,

finally heard the appellant who appears in person as well as counsel for the

respondent Jawaharlal Nehru University (JNU) who appeared on advance

notice. During the course of hearing, the files of the writ petitions from

which this appeal arises were also called for and perused.

2. The appellant joined the JNU w.e.f. January, 1971 as a Research

Assistant in the Department of South Eastern Studies and was on 29 th

November, 1973 offered and on 3 rd December, 1973 accepted the post of

Associate Fellow in the Post Graduate Studies Centre (PGSC) of JNU at

Imphal, Manipur, for a period of one year and which period was extended

from time to time. Upon the PGSC at Imphal inviting applications for the

posts of Associate Professor and Assistant Professor in Political Science

Division, the appellant applied and was appointed as Assistant Professor,

initially on ad hoc basis but was subsequently regularized. Upon the

PSGC being transferred to Manipur University, according to the JNU the

appellant became an employee of the Manipur University and ceased to be

an employee of JNU. This led to a round of litigation (first round of

litigation) and which culminated in the judgment titled Jawaharlal Nehru

University Vs. K.S. Jawatkar AIR 1989 SC 1577 and it was held that the

transfer of PGSC from JNU to Manipur University could not result in

transfer of the employment of the appellant to Manipur University and the

appellant was held to be continuing in the service of JNU. The appellant,

during the first round of litigation, had continued to work in the JNU.

3. The appellant thereafter filed WP(C) No. 2044/1992 (from which

this appeal arises) seeking direction to JNU to, i) release his revised salary

and other allowances including arrears and interest as of the post of

Assistant Professor w.e.f. 1st January, 1986; (ii) to promote him w.e.f. 1st

January, 1983 and give the benefit of the Merit Promotion Scheme (MPS);

and iii) impugning the list of faculty members of JNU as on 1 st October,

1989 which did not show the name of the appellant.

4. The learned Single Judge in the impugned judgment has noted that

vide interim order dated 15th July, 1992 in WP(C) No. 2044/1992 JNU was

directed to, without prejudice to rights and contentions pay to the appellant

salary at the revised scale of pay and under the Career Advancement

Scheme. While disposing of this petition, JNU has been directed to pay to

the appellant simple interest at 9% per annum for the period from 1 st

January, 1986 to the date of payment of arrears in terms of interim order

dated 15th July, 1992. Thus relief no. (i) in WP(C) No. 2044/1992 stands

granted to the appellant and the appellant before us has not urged any

grievance qua the same. Insofar as the challenge in WP(C) No. 2044/1992

to the list of faculty members [relief No. (iii)] was concerned, the learned

Single Judge held that the name of the appellant was not mentioned therein

owing to the pendency then of the first round of litigation. It was further

noticed that the position had since been rectified and the name of the

appellant had been included in the subsequent list of faculty members. It

was thus held that the only relief surviving in WP(C) No. 2044/1992 was

of the claim of the appellant of entitlement to MPS.

5. Qua the entitlement to MPS, the case of the appellant was that

though he had applied on 5th September, 1983 but his case was not

considered and therefore one Mr. Sushil Kumar who was junior to the

appellant and did not possess Ph.D. was promoted under the MPS

Guidelines w.e.f. 1 st January, 1983; that the appellant, after the judgment

(supra) of the Supreme Court in the first round of litigation again

represented for consideration of his case under the MPS and his said

representation was considered on 23 rd April, 1991 by a Selection

Committee constituted for the said purpose but he was not found suitable

for promotion to the post of Associate Professor under the MPS; however

the Selection Committee in its meeting held on 15th March, 1993

considered his case and found him suitable and promoted him to the post of

Associate Professor w.e.f. 1st January, 1984.

6. Thus the controversy qua MPS also, is only as to whether the

appellant was entitled to be promoted w.e.f. 1 st January, 1983 instead of 1 st

January, 1984 from which date he was promoted. The challenge by the

appellant on this account is predicated on the averment that the Selection

Committee which rejected his case for promotion under MPS w.e.f. 1 st

January, 1983 was not properly constituted. It is averred that the 'expert

members' thereof were experts in international relations and not in

international politics as they ought to have been.

7. The learned Single Judge has dealt with the aforesaid, observing that

decision of the Selection Committee could not be invalidated on this

ground and specially when it is not the case that the members of the

Selection Committee which rejected the case of the appellant for

promotion w.e.f. 1st January, 1983 were inimical towards the appellant.

The learned Single Judge accordingly held the appellant not entitled to the

said relief claimed in WP(C) No. 2044/1992.

8. The appellant before us also has argued mainly on this aspect. He

has invited our attention to, i) the pleadings in this regard in paras 17 and

18 of the writ petition; ii) the affidavit dated 10 th July, 1992 filed by

Professor M.L. Sondhi in the writ petition supporting the case of the

appellant in this regard; iii) the Report of the Committee on Governance

of Universities and Colleges to show that the nominee of the Vice

Chancellor in the Selection Committee is to be concerned with the

specialty for which the selection is being made and to be nominated after

consultation with the Head of the Department and the Dean of Faculty-

From the said Report it is also shown that it is advisable for the Vice

Chancellor to invariably associate the Professor- in- charge of a particular

field of specialization with the Selection Committee recommending

appointments in that field; and iv) the Additional Affidavit dated 23 rd

April, 2010 filed by the Registrar JNU in WP(C) No. 911/2007 to contend

that though as per the MPS Guidelines the case of the appellant for

promotion under MPS, once rejected, could be considered only after lapse

of two years but was considered before two years only. It is thus argued

that the denial of promotion to the petitioner w.e.f. 1st January, 1983 is bad.

9. We are not inclined to, in this appeal enter into the controversy as to

the qualification of the Members of the Selection Committee which

rejected the case of the petitioner for promotion under the MPS

Guidelines w.e.f. 1 st January, 1983. In the absence of any plea of mala

fides, the presumption is that the authorities entrusted with the task of

constituting the Selection Committee have constituted the same as per the

Rules/Guidelines and this Court is not entitled to interfere with the decision

of the experts in this regard. We are unable to find any error in the

approach of the learned Single Judge in dealing with the said issue. We

therefore do not find any merit in the appeal qua the judgment in WP(C)

No. 2044/1992.

10. At this stage it may be recorded that the appellant was

superannuated from JNU on attaining the age of 62 years, on 31 st August,

2000.

11. WP(C) No. 911/2007 was filed seeking (i) a direction to the JNU to

grant the appellant promotion as Professor w.e.f. 1 st January, 1992 and

alternatively as Professor Appadorai Chair in international relations w.e.f.

1995; (ii) a declaration that the appellant is deemed to have continued in

service upto the age of 65 years in terms of statutory provision of clause 6

of the Academic Ordinance made applicable to JNU under the JNU Act,

1966 as well as Resolution dated 19 th April, 1976 of the JNU; and (iii) a

direction to JNU to pay to the appellant the entire arrears of salaries upto

31st August, 2003 and other statutory dues including pension w.e.f. 1 st

September, 2003.

12. The learned Single Judge has noted that vide detailed order dated

19th November, 2008 in WP(C) No. 911/2007 the scope thereof was

confined to the claim of the appellant to promotion to the post of Professor

w.e.f. 1st January, 1992 as the other reliefs claimed by the appellant were

held to be barred by res judicata. Mention in this regard has been made of

WP(C) No. 3502/1995 and WP(C) No. 6107/2000 also filed by the

appellant and the judgments therein holding that the appellant had no right

to be considered for appointment to the Appadorai Chair and no right to

remain in service upto the age of 65 years. It is also not in dispute that the

appellant preferred LPA 1/2009 against the said order dated 19th

November, 2008 but which was dismissed on 6 th January, 2009. It is also

not in dispute that the appellant preferred SLP 10313/2009 thereaginst

which was not entertained and disposed of on the statement of the

appellant that his claim for continuing till 65 years was pending in other

matters. The appellant was however unable to inform the learned Single

Judge and has been unable to inform us also as to where else the said claim

was pending except in WP(C) No. 911/2007. It thus has to be held that the

scope of WP(C) No. 911/2007 is confined only to the claim to the post of

Professor w.e.f. 1st January, 1992.

13. Qua the said claim, the learned Single Judge has held that the

Committee constituted for the said purpose had in its meeting held on 30th

August, 1996 not found the appellant fit for promotion and had

recommended the case of the appellant to be considered after two years.

The learned Single Judge has further noticed that the appellant did not at

any time thereafter and until 7 years after his superannuation, raise the said

issue. It has thus been held that the said claim is barred by laches.

14. We are in agreement with the reasoning given by the learned Single

Judge. The appellant, if aggrieved by non-grant of promotion to the post of

Professor or by Minutes of the Meeting held on 30 th August, 1996 of the

Selection Committee, ought to have challenged the same immediately.

The learned Single Judge has further rightly observed that no such claim

was made in WP(C) No. 6107/2000 preferred by the appellant. No error is

found in the said reasoning of the learned Single Judge also. We are thus

in agreement with the dismissal of WP(C) No. 911/2007 by the learned

Single Judge.

15. Axiomatically this appeal is without merit and is dismissed. No

order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

JULY 13, 2012 'M'