Delhi High Court
University Of Delhi vs Amar Nath Jah & Anr. on 9 May, 2019
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 09.05.2019
+ LPA 694/2016 & CM APPLN. 46147/2016
UNIVERSITY OF DELHI ..... Appellant
Through: Mr. Mohinder JS Rupal and Mr. Prang
Newmai, Advocates
versus
AMAR NATH JAH & ANR. .....Respondents
Through: Mr. A.K. Thakur, Mr. R.K. Mishra,
Mr. Rishi Raj and Ms. Kavita Singh,
Advocates for respondent No.1
Ms. Monika Arora, Mr. Kushal
Kumar and Mr. Harsh Ahuja,
Advocates for respondent No.2
Mr. Sanjoy Ghose, ASC with Mr.
Ayush Sharman, Advocate for
GNCTD
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J. (ORAL)
1. The University of Delhi, appellant herein, is aggrieved by the order
dated 10th November, 2016 passed by the learned Single Judge of this Court
in a writ petition filed by the respondent No.1 (hereinafter referred to as
„Jha‟). The writ petitioner sought a direction to the University of Delhi,
appellant herein (hereinafter referred to as „the University‟), to grant
approval to his appointment as the Vice-Principal of respondent No.2
(hereinafter referred to as „the College‟). Jha also sought quashing of three
letters dated 13.01.2016, 19.01.2016 and 27.01.2016 by which the University
declined the request for grant of approval to the appointment of Jha as Vice-
Principal, of the College.
2. Some undisputed facts are that Jha was selected for appointment as
Vice-Principal by the Selection Committee in its meeting held on 28 th
December, 2015. This appointment was made by the Governing Body of the
College and the minutes were signed by fourteen members. The College
thereafter issued a letter to Jha on 29th December, 2015 appointing him as
Vice-Principal of the College. Simultaneously, approval was sought from the
University of Delhi by Communication dated 28th December, 2015. The
approval was declined. The learned Single Judge has extracted this letter of
13th January, 2016. We do so as well, as it has a bearing on the outcome of
this appeal. This letter is extracted as under: -
"No.CS.I/114/P/VP(TS)/SSN/2013/50 13.01.2016
The Chairman,
Governing Body,
Swami Shradhanand College,
Alipur,
Delhi-110036
Subject: Arrangement for the post of Principal of the College-
regarding
Sir,
The University is in receipt of letter No.SSC/56/2015-16/1466
dated 28.12.2015 on the above subject vide which the approval
of the University has been sought on the recommendation of
the Governing Body to the appointment of Dr.A.N. Jha,
Associate Professor in History as Vice-Principal of the
College.
In this regard, your attention is invited to the provision of
Ordinance XVIII, Clause 7(3) which is re-produced
hereunder:-
„...In case of casual vacancy in the Office of the Principal, the
Vice-Principal, if any, shall until the appointment of Principal,
act as the Principal. In case there is no Vice-Principal, the
senior most teacher shall act as Principal. The teacher so as to
act as Principal shall fulfill the minimum eligibility
requirements for appointment as Principal of the College.
Such temporary arrangements shall be made ordinarily for a
period not exceeding six months and shall require the prior
approval of the University.‟
Earlier in the year 2014, the College sought the approval of
the University to appoint Vice-Principal of the College at the
time when there was a regular Principal in the College. The
University conveyed its approval for appointment of Dr.
Parveen Garg as Vice-Principal of the College duly
recommended by the Governing Body. Consequent upon the
superannuation of Dr. S.K. Kundra on 31.12.2014, Dr.
Parveen Garg was given the charge of Acting Principal w.e.f.
01.01.2015.
Subsequently, the Governing Body in September, 2015 decided
not to recommend the extension of appointment of Dr. Parveen
Garg to act as Principal of the College and recommended the
name of senior most teacher i.e. Dr. Pankaj Bhan to act as
Principal. Now again, the Governing Body of the College on
its own without seeking prior approval of the University as
mandated under clause 4(4) of Ordinance XVIII of the
University, recommended the appointment of Dr.A.N. Jha as
Vice-Principal of the College. It is evident that the Governing
Body of the College is interpreting and using the rules suiting
their vested interest. Further, the decision is not only arbitrary
but also is in utter violation of the various provisions of
Ordinance XVIII of the University.
In view of the above, the decision of the Government Body to
appoint Dr.A.N. Jha as Vice-Principal of the College is not
approved.
Further, you may kindly suggest the name of senior most
teacher of the College to act as Principal of the College who
fulfills the minimum eligibility requirement for appointment as
Principal of the College, abiding the provisions of the
University of Delhi.
Kindly take immediate action in the matter.
Yours faithfully,
Sd/-
Assistant Registrar (Colleges)"
3. Relying upon the contents of this letter, the learned Single Judge
opined that except that the College had not followed Clause 4(4) of
Ordinance XVIII of the University, there was nothing in the Communication
which suggested that the appointment of Jha as Vice-Principal was illegal or
that he was ineligible. The learned Single Judge accordingly allowed the writ
petition with the rider that Jha would not become Vice-Principal of the
College pursuant to the letter of the College dated 29 th December, 2015, but
his appointment would take effect from the date of approval by the
University.
4. The University had opposed the writ petition and has filed the present
appeal. Mr. Rupal submits that on 18.12.2014, the Governing Body of the
College had recommended the name of Dr. Parveen Garg as Vice-Principal
of the College and sought approval from the University, which was duly
accorded. The appointment of Dr. Parveen Garg as Vice-Principal was done
during the tenure of Dr. Kundra, who was the Principal of the College.
Dr.Garg was initially appointed as Vice Principal for six months, but his
tenure was extended by further three months and hence he was to continue at
least till 30.09.2015. When Dr. Kundra superannuated on 31.12.2014,
Dr.Garg being the Vice-Principal became the Acting Principal. When the
tenure of Dr. Garg ended as a Vice-Principal, the senior-most teacher,
Dr.Pankaj Bhan, was recommended by the Governing Body for the
appointment as Acting Principal w.e.f. 01.10.2015. The University approved
the appointment of Dr. Bhan as Acting Principal w.e.f. 1.10.2015 for three
months. This, Mr. Rupal, submits is in conformity with the Ordinance XVIII
Clause 7(3). Mr. Rupal next contends that as per Ordinance XVIII Clause
7(3), the post of Vice-Principal could not have been filled-up till a regular
Principal was appointed and, in the interregnum, the senior-most teacher was
to fulfil the duties and responsibilities of the Principal. Mr. Rupal, while
elaborating his arguments, further contends that the fear of the University is
that once the Vice-Principal is appointed, then he would continue to
discharge the duties of an Acting Principal and would not allow the
appointment of a regular Principal and this would also displace the senior-
most teacher, who is acting as a Principal.
5. In this backdrop, Mr. Rupal submits that the Principal should be
appointed first and only thereafter the University could grant approval to the
Vice-Principal recommended by the Governing Body. Additionally, it is
submitted that the process for appointing the Principal has been stalled as
fresh Governing Body is to be appointed. Names have been suggested to the
Delhi Government, but the approval has not been granted by the Delhi
Government.
6. Mr. Thakur, learned counsel appearing for Jha, submits that the
submission and stand of the University is completely misplaced. There is
absolutely no bar in Ordinance XVIII Clause 7 (3) in appointing a Vice-
Principal, when the post of regular Principal is vacant. He submits that the
Governing Body appointed Jha as the Vice-Principal by following the
regular procedure for appointment as per the Ordinance XVIII Clause 4(4).
He submits that four persons, including the senior-most teacher, namely,
Dr.S.P.Tyagi, Dr. P.V.Khatri, Dr. Jagbir Singh and Dr. A.N.Jha, had applied
for the post of Vice-Principal. The Selection Committee in their meeting
dated 28th December, 2015 recommended Dr. A.N.Jha for appointment as
Vice-Principal. This meeting was attended by fourteen members. Minutes of
the meeting have been filed bearing signatures of each of the members. Mr.
Thakur submits that post this meeting, the approval was sought, which is the
normal procedure and not unknown to the University. Attention of this Court
is drawn to a chart, which has also been filed by the University, which we
extract below, to show that since the year 1975 upto 2015, 17 appointments
had taken place and out of these, only one appointment was made with prior
approval, while rest were approved post appointment: -
Swami Shraddhanand College
University of Delhi,
Alipur, Delhi-110036
List of Vice-Principals w.e.f. 1975 to till date
S.No. Name Period Approval
From To from D.U.
Dated
1 Dr.J.L. Bhat 20.10.1975 18.01.2001 18.10.1975
2 Sh.O.K. Yadav 19.01.2001 18.01.2002
3 Dr.R.P.Singh 01.04.2002 31.03.2004 12.06.2002
4 Dr.Sukhdev 01.04.2003
5 Dr.R.B.Sharma 01.04.2004 30.09.2004 16.06.2004
6 Dr.A.N.Roy 18.10.2004 30.09.2005
7 Dr.P.K. Bhardwaj 01.10.2005 30.09.2006
8 Dr.Anita Marwah 01.04.2007 31.03.2008 23.04.2007
9 Dr.S.C.Anand 05.04.2008 04.04.2009 16.09.2008
10 Dr.S.K. Dhingra 05.04.2009 04.04.2010 03.11.2009
11 Dr.R.N. Garg 20.04.2010 19.04.2011
12 Dr.Rekha Dhingra 05.05.2011 13.08.2012
13 Dr.D.K.Joshi 14.08.2012 31.07.2013
14 Dr.Pankaj Bhan 01.08.2013 31.07.2013
15 Dr.Parveen Garg 01.01.2015 30.06.2015 30.12.2014
16 Dr.Parveen Garg 01.07.2015 30.09.2015 01.07.2015
17 Dr.Pankaj Bhan 01.10.2015 31.12.2015 10.12.2015
(Acting-Principal)
7. Mr. Thakur further submits that there is nothing wrong with the
proposition sought to be raised by Mr. Rupal, that in terms of Ordinance
XVIII Clause 4(4), appointment of Vice-Principal is to be made with the
prior approval of the University. However, the learned Single Judge has
taken this into account and to some extent agreed with the stand of the
University and it is for this reason, the learned Single Judge has held that Jha
would not become Vice-Principal pursuant to letter of the College dated 29 th
December, 2015, but appointment would take effect, post approval.
8. We have heard learned counsel for the parties and carefully examined
the order passed by the learned Single Judge. The two Ordinances of the
University Calendar being Ordinance XVIII Clause 4(4) and XVIII Clause
7(3) have been referred to and relied upon. We thus deem it appropriate to
extract the same as under: -
Ordinance XVIII Clause 7(3)
"In case of a casual vacancy in the office of the
Principal, the Vice-Principal, if any, shall until the
appointment of the Principal, act as the Principal. In case
there is no Vice-Principal, the senior most teacher shall act as
Principal. The teacher so to act as Principal shall fulfil the
minimum eligibility requirements for appointment as Principal
of the college."
Ordinance XVIII Clause 4 (4)
"If the Governing Body wish to appoint a Vice-
Principal, it should do so with the prior approval of the
University. The appointment of the Vice-Principal shall be
made from among the Readers in the College who fulfil the
qualifications for the post of Principal. The appointment of
such Vice-Principal shall require the approval of the
University"
9. The first submission of Mr. Rupal, learned counsel appearing for the
University, is that the post of Vice-Principal cannot be filled-up during the
period when the post of Principal is lying vacant. Connected to this
submission is that in case this post of Vice-Principal is filled-up, the Vice-
Principal would not allow the filling-up of the post of Principal and he would
take advantage of Ordinance XVIII Clause 7(3), as per which, in case of
vacancy in the office of Principal, the Vice-Principal shall act till the
appointment of regular Principal and at present, the senior-most teacher has
already been appointed as Acting Principal and there should be no reason to
displace him.
10. The second submission of Mr. Rupal is that the Ordinance XVIII
Clause 4(4) has not been complied with as no prior approval was sought. Mr.
Thakur, learned counsel appearing for the respondent No.1, has submitted
that there is no infirmity in the order passed by the learned Single Judge.
Proper procedure was followed. Out of four eligible teachers, the Governing
Body recommended Jha as Vice-Principal and the argument that he would
not allow the appointment of a Principal is baseless, unfounded and fanciful.
Nothing has been pointed out to show that there is a bar in appointing the
Vice-Principal when the post of Principal is lying vacant.
11. As far as the first submission of Mr. Rupal is concerned, we find no
force in the same. Ordinance XVIII Clause 7(3) has been relied upon. A
reading of this Ordinance does not show nor could it be pointed out that
there is any express bar or even an indirect prohibition that in the absence of
a regular Principal, the post of Vice-Principal cannot be filled-up. As far as
the second submission of Mr. Rupal pertaining to prior approval is
concerned, we deem it appropriate to reproduce paragraphs No.4 to 6 of the
order passed by the learned Single Judge. The same are reproduced as under:
-
"4. A reading of the aforesaid letter does not show that
the respondent no.1/University of Delhi has at all stated that
petitioner was not fit for the job on account of lacking the
eligibility criteria for being appointed as the Vice-Principal
of the respondent no.2/college. Respondent no.1/University of
Delhi only raise the issue of the prior approval of the
University lacking to the appointment of the petitioner as the
Vice-Principal of the respondent no.2/college and which is
required as per Clause 4(4) of the Ordinance XVIII of the
University. In the counter affidavit of the respondent
no.1/University of Delhi to the writ petition, as also in an
additional affidavit which has been filed by the respondent
no.1/University of Delhi dated 26.10.2016, the respondent
no.1/University of Delhi has justified its action in declining
the grant of approval by referring to the same Clause 4(4) of
the Ordinance XVIII of the University. There are also certain
aspects urged on behalf of the respondent no.1/University of
Delhi by reference to its affidavits and its Letter dated
13.1.2016 that the appointment of the petitioner as Vice-
Principal of the respondent no.2/college is malafide because
if there is no Principal of a college, then, the Vice-Principal
automatically becomes the Acting Principal of the college i.e
malafides are imputed against the petitioner being appointed
the Acting Principal of the respondent no.2/college by being
appointed as Vice-Principal of the respondent no.2/college.
In the additional affidavit, the respondent no.1/University of
Delhi also states that petitioner has been acting illegally as
the Acting Principal of the respondent no.2/college and has
been wrongly denying access to the Governing Body
members for holding of their meetings in the college. In sum
and substance, the main defence of the respondent
no.1/University of Delhi is that by exercise of appointment of
the petitioner as the Vice-Principal, actually the petitioner is
straightaway acting as the Acting Principal of the respondent
no.2/college.
5(i). In my opinion unfortunately the respondent
no.1/University of Delhi seems to have gone into a complete
off-tangent in the present case because the only case/cause of
action pleaded in the present writ petition, and the only relief
claimed in the writ petition, is seeking the appointment of the
petitioner to the post of Vice-Principal of the respondent
no.2/college. There is no case of the petitioner wanting to act
and making a prayer in this writ petition that the petitioner
be declared as the Acting Principal of the respondent
no.2/college. There is no challenge by the respondent
no.1/University of Delhi to the lack of any eligibility criteria
in the petitioner for being appointed as the Vice-Principal of
the respondent no.2/college. The only aspect which is urged
is lack of prior approval and of the petitioner being
appointed as the Vice-Principal by the respondent
no.2/college vide its Letter dated 29.12.2015 without waiting
for the prior approval of the respondent no.1/University of
Delhi.
(ii) In this regard, it is relevant to note that no doubt
the respondent no.2/college could not have issued its Letter
dated 29.12.2015 appointing the petitioner as the Vice-
Principal of the respondent no.2/college without the prior
approval of the respondent no.1/University of Delhi as per
Clause 4(4) of Ordinance XVIII of the respondent
no.1/University of Delhi, and therefore, the effect would be
that the Letter dated 29.12.2015 will not operate for
appointing the petitioner as the Vice-Principal till approval
is given by the respondent no.1/University of Delhi. However,
the respondent no.1/University of Delhi is also completely
unjustified in declining the approval on irrelevant
considerations of the petitioner not being justified in acting
as the Acting Principal of the respondent no.2/college. The
issue in the present case is appointment of the petitioner as
the Vice-Principal, and, if the petitioner thereafter is wrongly
acting as the Acting Principal of the respondent no.2/college,
then if the action of the respondent no.2/college in allowing
the petitioner to officiate as the Acting Principal is incorrect,
the respondent no.1/University of Delhi is always at liberty to
take appropriate action in accordance with law and its
applicable Ordinance, but, that cannot be a ground for this
Court to hold that the respondent no.1/University of Delhi is
entitled to refuse the grant of approval to the appointment of
the petitioner as the Vice-Principal of the respondent
no.2/college once there is no issue with respect to petitioner
lacking in any eligibility criteria for being appointed as the
Vice-Principal of the respondent no.2/college and the fact
that the Governing Body of respondent no.2/college as per
the decision of the Selection Committee has decided to
appoint the petitioner as the Vice-Principal.
6. Accordingly, this writ petition is allowed by
observing that the petitioner did not become the Vice-
Principal of the respondent no.2/college pursuant to the
Letter of the respondent no.2/college dated 29.12.2015, but,
respondent no.1/University of Delhi will now grant approval
to the petitioner for the appointment as the Vice-Principal of
the respondent no.2/college within two weeks from today. In
case, respondent no.1/University of Delhi has any other
grievance including of petitioner allegedly not being entitled
to act as the Acting Principal of the respondent no.2/college,
then, respondent no.1/University of Delhi in accordance with
law as applicable and its rules and Ordinances can always
take appropriate action, and which are not the issues before
this Court in this writ petition."
12. We may also note that Jha was recommended as Vice-Principal by the
Governing Body in their meeting dated 28th December, 2015. Till date, the
appointment of Jha as Vice-Principal has not been challenged by any of the
three persons, who had been considered with him for appointment as Vice-
Principal. None of the candidates or senior teachers have even protested that
the person recommended did not meet the eligibility criteria or for any other
reason was unsuitable for the said post. The learned Single Judge has also
safeguarded the interest of the University and rightly held that the
appointment of Jha would not be effective from 29th December, 2015, but
would take effect after approval by the University. This would also act as a
deterrent for Colleges, who do not seek prior approval of the University
before making the appointments. In fact, the University in our view should
issue an express circular and also place the same on the website with a word
of caution to all colleges to follow the process of prior approval, so that it is
uniformly applied and there are no aberrations.
13. In our view, once Jha was recommended as Vice-Principal by the
Governing Body, to say that the senior-most teacher would be deprived of
acting as the Principal, is unacceptable. If this argument is to be accepted,
then there would be no requirement for appointment of a Vice-Principal or
even a Principal. Accordingly, we find no ground to entertain this appeal.
The same is dismissed.
14. We cannot help but to take note that the regular Principal of this
College superannuated on 31st December, 2014. Dr. Parveen Garg, who was
the Vice-Principal of the College and whose term was to expire on 30th June,
2015 was given extension of three months w.e.f. 1st July, 2015 till 30th
December, 2015 and who acted as the Principal. Post the expiry of the tenure
of Dr. Parveen Garg, the senior-most teacher Mr. Pankaj Bhan was
recommended by the Governing Body to act the Principal w.e.f. 1 st October,
2015. His approval was granted by the University post his appointment, for
three months.
15. The chronology given above highlights that regular Principal of this
College superannuated way back on 31st December, 2014 and till date, there
is no regular Principal. An endeavour was made by the predecessor of this
Court to redeem the situation by directing the Delhi Government to approve
a list of members of the Governing Body, funded by the University. We are
informed that there is some progress. Since this is between the University
and the Delhi Government, and not directly connected with this writ petition,
we see no reason to keep the present matter pending any further, but
certainly hope that the matter would be resolved and the Governing Body
would be formed within a period of one month from today, within which
period, the order of the learned Single Judge shall also be complied with.
This would be in the larger interest of Education System.
16. The appeal alongwith the pending application is disposed of in above
terms.
G.S.SISTANI, J
JYOTI SINGH, J
MAY 09, 2019
s
