# Dr. Anish Khanna v. The Chancellor, University of Lucknow & others

- **Citation:** (2011) 3 ILRA 1013
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-06
- **Case number:** Writ Petition No. 109 (S/B) of 2001
- **Bench:** Pradeep Kant, Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-anish-khanna-v-the-chancellor-university-of-lucknow-others-42019
- **Pages:** 4

## Text

3 All] Dr. Anish Khanna V. The Chancellor, University of Lucknow & others
1013
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.09.2011

BEFORE
THE HON'BLE PRADEEP KANT,J.
THE HON'BLE RITU RAJ AWASTHI,J.

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

Dr. Anish Khanna

 ...Petitioner
Versus
The Chancellor, University of Lucknow &
others

 ...Respondents

Constitution
of
India-Article
226
readwith Section 66 of State Universities
Act-Constitution of selection committee-
challenged
by
such
candidate
who
participated and found not selectedwithout any protest-can not be allowed
to turn round and question the formation
of committee itself-even the nominee of
Central as well as State Govt. not therecan
not
be
fatal-order
impugned
Quashed.

Held: Para 19

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.
Case law discussed:
2002 (6) SCC 124

(Delivered by Hon'ble Pradeep Kant,J.)

1. 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.

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

3. 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.

4. 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.

5. Along with the petitioners, certain
other persons, including the private
respondent Dr. Ashok Kumar Yadav, also
applied in pursuance of the advertisement.
1014 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

6. 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.

7. 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.

8.

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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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 -
3 All] Dr. Anish Khanna V. The Chancellor, University of Lucknow & others
1015

(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."

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

15. 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.

16. 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.

17. 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.

18.

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.

19. 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
1016 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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."

20. 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.

21. 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.

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

23. 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.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.09.2011

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Appeal No.109 of 2011

Smt. Tara Devi and another ...Appellants
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri Arvind Srivastava

Counsel for the Respondents:
Sri Patanjali Mishra
A.G.A.

Code of Criminal Procedure-Section-389grant of interim bail during pendency of
final consideration of Bail Applicationpending
Criminal
Appeal-heldinappropriate cases-even after addition
of proviso-which is for final relief of BailAppellate court can grant interim Bail to
a convicted accused-No embargo or
fetters on its power.

Held: Para 32 and 33

In view of the above discussion, right of
appellate court to consider interim bail
prayer in appropriate case, pending
consideration of final relief of bail is
preserved even after addition of proviso.
The rider provided by the proviso relates
to final relief of bail and not interim bail
prayer in appropriate cases. Reference to