# Dr. Prabhu Narain Saxena v. V.C., Dr. Bheem Rao Ambedkar University & others

- **Citation:** (2001) 1 ILRA 106
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-08-09
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-prabhu-narain-saxena-v-v-c-dr-bheem-rao-ambedkar-university-others-39568
- **Pages:** 6

## Text

106 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
the tax from its customers. Thus the
petitioner cannot get the benefit of the
circular.

11. No other point has been pressed.
In view of the aforesaid discussions, we
find no merit in the submissions made by
the learned counsel for the petitioner and
the writ petition is dismissed. However,
the parties shall bear their own costs.

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By the Court

1. The petitioner seeks writ of
certiorari
quashing
the
order
dated
9.8.2000 passed by the Vice Chancellor
appointing Dr. Sunil Jain, respondent no4,
as Professor in Zoology department of Dr.
Bheem Rao Ambedkar University, Agra
(hereinafter referred to as the University)
and further a writ of mandamus
restraining

the
respondents
from
interfering with his functioning as Head
of the Zoology Department.

2. The claim of the petitioner is
based on the fact that he was appointed as
Reader in the University on 21.09.1987.
He was confirmed on the said post on
1All] Dr. Prabhu Narain Saxena V. V.C., Dr. Bheem Rao Ambedkar University & others 107
29.10.1988. One Dr. S.P. Jain
Challenged the selection of the petitioner
by
making
representation
to
the
Chancellor.
His
representation
was
allowed by the Chancellor on 28.11.1988
holding that the selection of the petitioner
was not in accordance with law. The
petitioner filed Writ Petition No.23263 of
1988 challenging the said order. This
Court granted interim stay order against
the order of the Chancellor and he
continued to function as Reader in
Zoology Department. The petitioner was
appointed as Head of the Zoology
Department with effect from 30.6.1994 on
the ground that he was the senior most
teacher in the Department.

3. The post of professor was vacant
in the Zoology Department of the
University.
The
petitioner
made
a
representation to the University that he
may be considered for promotion to the
post of Professor under the Personal
Promotion
Scheme.
As
the
matter
remained pending with the University, the
petitioner filed Writ Petition No.5005 of
2000, Prabhu Narain Saxena Vs. Vice
Chancellor and others, Seeking Writ of
mandamus directing the respondents to
consider his claim for promotion as
Professor under the Personal Promotion
Scheme. The Writ petition was disposed
of by this Court on 31.1.2000 with the
direction that the Executive Council to
take appropriate action in the matter for
considering the case of the petitioner for
promotion as Professor preferably within
six weeks from the date of production of
certified copy of the order passed by the
Court. The Executive Council, in its
meeting held on 16.5.2000, passed a
resolution that as the matter pertaining to
his appointment as Reader is subjudice in
this Court in Writ Petition No. 23363 of
1988, he could not be considered for
promotion to the post of Professor. The
petitioner again approached this Court
against the said resolution by filing Writ
Petition No. 14514 of 2000 which is still
pending. In the meanwhile Writ Petition
No. 23263 of 1988, filed by the petitioner,
was allowed on 27.7.2000 and the order
of the Chancellor dated 28.11.1988 was
quashed on the finding that the selection
of the petitioner as Reader in the
University was in accordance with law.
The Executive Council, after the decision
of the writ petition on 27.7.2000, was to
consider the claim of the petitioner for
promotion under the Personal Promotion
Scheme but in the meantime the Vice
Chancellor of the University, respondent
no.4 for the post of Professor in the
Zoology Department of the University,
respondent no.1, passed an order on 9th
August, 2000, appointing on a contract
basis for the period of one year or till the
regular appointment is made whichever is
earlier. This order has been challenged by
the petitioner in the present writ petition.

4. The core question is, whether the
Vice Chancellor has power to make adhoc or short term appointment on the post
of Professor in the Department of the
University under the provisions of U.P.
State Universities Act, 1973 ( herein after
referred to as ' the Act') or under any
other law. The power of the Vice
Chancellor has been enumerated under
Section 13 of the Act. The relevant
provisions in this respect are Section 13
(1) (a), Section 13 (6) and 13 (8) of the
Act.

5. The power of appointment is
conferred on the executive Council or
management of the affiliated or associated
college under Section 31 of the Act. It
108 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
does not confer any power on the Vice
Chancellor to make any appointment.
There is no other provision under the Act
or Statute which confers power on the
Vice Chancellor to make appointment to
the post of teacher.

Dr. R.G. Padia, learned counsel for
the respondent no.4, submitted that the
Vice Chancellor in exercise of general
supervision and control over the affairs of
the University has power to make adhoc
appointment to the post of any teacher
including the post of Professor in the
University. In this context sub-section (6)
of Section 13 is relevant which confers
the power on the Vice Chancellor to make
appointment when the matter is of urgent
nature requiring immediate action and the
same could not be immediately dealt with
by any officer or the authority or other
body of the University empowered under
the Act. It specifically excludes the power
to appoint a teacher in the University. The
relevant provision of subsection (6) of
Section 13 reads as under:-

"(6) Where any matter( other than the
appointment of teacher of University) is
of urgent nature requiring immediate
action and the same could not be
immediately dealt with by any officer or
the authority or other body of the
University empowered by or under this
Act to deal with it, the Vice Chancellor
may take such action as he may deem fit
and shall forth with report the action
taken by him to the Chancellor and also
to the officer, authority, or other body
who or which in the ordinary course
would have dealt with the matter:

(emphasis supplied)
...................."

6. It may be noted that sub section
(6) of Section 13 of the Act, before its
amendment by U.P. Act.No.1 of 1992,
provided that when any matter is of
urgent nature requiring immediate action
and the same could not be immediately
dealt with by any officer or authority or
other body of the University empowered
by or under the Act to deal with it, the
Vice Chancellor may take such action as
he deems fit. Sub-section (8) of Section
13 provided that where the exercise of
power by the Vice Chancellor under
Sub section ( 6) involves the
appointment of an officer or a teacher of
the University, such appointment shall
terminate on appointment being made in
the prescribed manner or on the
expiration of period of six months from
the date of the order of the Vice
Chancellor, whichever is earlier. Subsection ( 6 ) read with sub-section ( 8 ) of
Section 13 of the Act prior to the
amending Act of 1992 conferred power
on the Vice- Chancellor to make ad-hoc
appointment of a teacher in case of an
urgency but the Amending Act has
taken away this power by excluding the
power of Vice Chancellor to make
appointment of a teacher. Sub section
(6) has added the words "other than
appointment of teacher of the University
"and similarly under Sub section (8) the
words " or a teacher of the University has
been deleted. The legislative intent is
clear that the Vice Chancellor should not
be given any power to make ad hoc
appointment of teacher of the University.

7. Secondly, in the facts and
circumstances of the case there was
nothing to show that appointment to the
post of Professor was extremely urgent.
The power under Section 13 can be
exercised by the Vice Chancellor only
1All] Dr. Prabhu Narain Saxena V. V.C., Dr. Bheem Rao Ambedkar University & others 109
when the matter is too urgent and requires
immediate
action.
The
question
of
promotion of the petitioner to the post of
professor was to be considered by the
Executive Council and before the decision
could be taken by the Executive Council
the Vice Chancellor has passed the order
making appointment of respondent no.4 to
the
post
of
professor
in
zoology
Department of the University. The Court
has to examine objectively the condition
precedent for the exercise of powers by an
authority as held in V.S. Vishwavidyalya
Vs. Raj Kishore Tripathi, AIR 1977 SC
615.

8. It is urged that the Vice
Chancellor can make appointment of a
teacher in exercise of his power of
supervision and control of the affairs of
the University under clause (a) of subsection (1) of Section 13 of the Act.

9. The general power which is
conferred under clause (a) of sub-section
(1) of Section 13 of the Act will not be
attracted when there is a specific bar
created under sub-section (6) of Section
13 of the Act in respect of appointment of
a teacher of the University by the Vice
Chancellor. Secondly, clause (a) of subsection (1) of Section 13 confers power
on the Vice Chancellor to exercise general
supervision and control over the affairs of
the University including the constituent
colleges and the Institutions maintained
by the University and its affiliated and
associated
colleges.
The
power
of
supervision and control of the affairs of
the University or any Institution does not
confer the power to act it self for another
authority who is empowered under the
Act to make appointments. He can only
supervise and control the affairs of the
University e.g. if any order is passed or
any action is taken by a subordinate
Authority, he can pass a suitable order in
respect of such action or orders.

10. The learned counsel for the
respondent submitted that sub-section (1)
of Section 31 of the Act provides that
Executive
Council
shall
make
appointment subject to the provisions of
the Act and as the words are "subject to
the provisions of this Act", it is contended
that it should be read as "subject to
Section 13 (1) (a) " Which confers the
power on the Vice Chancellor to exercise
general power of supervision and control
over the affairs of the University and such
power by virtue of the words used in subsection (1), namely , " subject to the
provisions of this Act" will invest the
power in the Vice Chancellor to make
appointment. This submission cannot be
accepted. The phrase " subject to the
provisions of this Act" under sub-section
(1) of Section 31 must relate to such other
provisions of Act which relates to the
appointment of a teacher in the University
or in the Committee of Management of an
affiliated or associated College.

11. Section 31 of the Act confers
power on the Executive Council to make
appointment of a teacher in the
University. The Executive Council has a
right to make appointment on substantive
vacancy by a regular selection but it has
also
power
to
make
officiating
appointment in a vacancy caused by the
grant of leave to an incumbent for a
period not exceeding ten months without
reference to the Selection Committee
under Section 31 (3) (a) of the Act. If
there is a permanent vacancy, there is no
reason that the Executive Council should
not take decision for appointment to the
post on the recommendation of the
110 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
Selection Committee or if a person is
entitled for promotion, not to take steps
to fill up the vacancy by promotion. The
Executive Council has been empowered
to make appointment on a leave vacancy
for a period up to ten months but if it
exceeds ten months again it has to appoint
a teacher after obtaining recommendation
of the Selection Committee under Section
31(3) (a) of the Act. It is clear that
substantive
appointment
as
well
as
officiating appointment has to be made by
the Executive Council and not by any of
the Authority under the Act. Section 31, It
appears to us, does not take into account a
situation where the Executive Council can
take a decision for filling up substantive
post by making ad-hoc appointment. The
legislative intent appears to be that if
substantive vacancy is existing, the
Executive Council should fill up the
vacancy expeditiously in accordance with
the provisions of the Act and not to make
ad-hoc appointment.

12. The learned counsel for the
respondent urged that the petitioner has an
alternative remedy to make representation
to the chancellor under Section 68 of the
Act and therefore the petitioner be
directed to seek alternative remedy. The
question as to when a petitioner should be
directed to make representation to the
Chancellor under Section 68 of the Act
was considered in Dr. Smt. Kantesh
Gupta Vs. Management of Hindu
Kanya Mahavidyalaya, Sitapur and
others, AIR 1987 SC 2186, wherein their
Lordships held that if the Vice
Chancellor passes an order without any
power under law such order could be
challenged before the High Curt by a
petition under Article 226 of the
Constitution of India and the High
Court would not be justified in
dismissing the writ petition on the
ground that an alternative remedy was
available to the petitioner under Section
68 of the Act. In this case the Vice
Chancellor had disapproved the order
of dismissal of the teacher from service
but subsequently he reviewed that order
and it was held that as he had no power to
review the order, it was a nullity and the
High Court could have entertained the
writ petition under Article 226 of the
Constitution and it should not have been
dismissed
on
the
ground
that
an
alternative remedy was available to the
petitioner under section 68 of the U.P.
State Universities Act.

13. In Pramod Pathak Vs. The
Vice
Chancellor,
Banaras
Hindu
University, Varanasi and others, 1985
UPLBEC 634, it was held that though an
aggrieved person can make representation
to the Visitor under Section 5 (7) of
Banaras Hindu University Act, 1915 but
where the Executive Council has taken a
decision, itself without jurisdiction the
High Court can exercise jurisdiction
under Article 226 of the Constitution of
India. As discussed above, we have found
that the Vice Chancellor has no power to
make any appointment under Section 13
of the State Universities Act. The
petitioner can challenge that order in this
petition and it cannot be rejected simply
on the ground that the petitioner should
approach the chancellor under Section 68
of the Act.

14. The next contention of the
learned counsel for the respondent is that
the Vice Chancellor had appointed the
wife of the petitioner also in the Zoology
Department as a Lecturer but the
petitioner then did not challenge this
order. It is settled law that there cannot be
1All] Jai Prakash Shastri V. Adhikshak, Janpad Karagar, Muzaffarnagar & others
111
parity in illegality. In The Secretary,
Jaipur Development Authority, Jaipur
v. Daulat Mal Jain etc., JT 1996(8)
S.C. 387, it was observed that Article 14
of the Constitution has no application or
justification to legitimise an illegal and
illegitimate action. If an appointment has
been made by the Vice Chancellor
illegally at earlier time, he cannot be
permitted to make such illegal order again
and again.

15. Another contention of the
respondent is that the petitioner has no
right
to
challenge
the
order
of
appointment of respondent no.4 as that
does not affect his right to function as
Reader in Zoology Department in
University.
The
grievance
of
the
petitioner is that he is entitled for
promotion to the post of Professor but
without considering his case by the
Executive Council, respondent no.4 has
been appointed as Professor by the Vice
Chancellor and that affects his rights. It
is not denied that the petitioner had made
representation to the Executive Council to
consider his claim for promotion to the
post of professor. The Executive Council
did not consider his case in regard to his
promotion to the post of Professor on the
ground that Writ Petition No.23263 of
1988 filed by him was pending. The said
writ
petition
has
been
decided
on
27.7.2000. After the decision of the said
writ petition it was for the Executive
Council
to
consider
his
claim
for
promotion to the post of Professor. The
Vice Chancellor has passed the order of
appointment
of
respondent
no.4
as
Professor on 9th August 2000. On the facts
and circumstances it cannot be urged that
the petitioner is not affected by the
appointment of respondent no.4 on the
post of Professor in Zoology department.

16. The last contention of the
learned counsel for the respondent is that
a Division Bench of the High Court
referred a question of law to be
determined by a larger Bench in Civil
Misc. Writ Petition No.3116 of 1999 and
in that order an observation was made that
pending further orders the University
can make ad-hoc appointment on the post
involved in that writ petition. Firstly, this
order was passed in a matter of Allahabad
University. The respondents were not
parties in that writ petition. Secondly, the
observation was made that the University
can make ad-hoc appointment but there
was
no
observation
that
the
Vice
Chancellor can make ad-hoc appointment.
The observation made in that referring
order has no relevance in the present case.

17. For the reasons given above, We
allow the writ petition. The order dated
9.8.2000
passed
by
the
ViceChancellor(Annexure-13 to the Writ
Petition) is hereby quashed. The parties,
in the facts and circumstances of the case,
shall bear their own costs.

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