# Prof. Ram Chandra v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 571
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-12
- **Case number:** Civil Misc. Writ Petition No. 17066 of 2014
- **Bench:** Arun Tandon, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prof-ram-chandra-v-state-of-u-p-ors-42815
- **Pages:** 7

## Headnote

(A)State Universities Act-1973-Section
68-Suo
moto
action
by
chancellorpetitioner was appointed on post of
lecturer
in
Geology-while
vacancy
advertised for post of Professor-in which
petitioner
not
found
suitable-heldappointment against vacancy without
advertisement-illegal.

Held:Para-18
We, therefore, see no reason to interfere
with the order of the Chancellor wherein
he has held the appointment of the
petitioner as Lecturer in the year 2002
and Reader in the year 2003 in the
subject of Geology was illegal being in
the teeth of the statutory provision of
Section 31 of the U.P. State Universities
Act, 1973.

(B)State
Universities
Act-1973-Section
31(1) and (4)-Appointment on post of
reader-selection committee not constituted
as per statutory requirement-V. C.-due to
the reason best to him-constituted same
selection
committee-who
had
earlier
recommended for appointment on post of
lecturer without advertisement-held-illegalhowever salary already drawn by petitioner
shall not be returned.

Held:Para-25
Even otherwise if substantial justice against
technical objection are pitted against each
other interest of substantial justice must
prevail. Universities are institutions of
learning and if illegal appointments are
permitted
to
be
perpetuate
in
such
institutions,
only
God
can
save
the
education
in
the
State.
If
the
Vice
Chancellor who is the Chief Executive of the
University himself acts unfairly as has been
noticed by the Chancellor in the order
impugned, this Court will not interfere with
the order of the Chancellor which has the
effect of curing the said illegality.

Case Law Discussed:
Civil Appeal No. 979 of 2014; AIR 1936 PC

## Text

2 All] Prof. Ram Chandra Vs. State of U.P. & Ors.
571
view that the order of the DIOS is
contrary and in teeth of the judgment of
the Division Bench in Special Appeal No.
420 of 2011 dated 17.03.2011. For the
said reason the order of single operation
passed by the DIOS needs to be set aside.
Accordingly, it is set aside. It is provided
that the papers relating to the election
dated 12.01.2014, which have been
submitted to the office of the DIOS, is
pending consideration. The DIOS is
directed to take appropriate decision on
the papers submitted by the Committee of
Management in terms of the Government
Order dated 19 December 2000 and 21
October 2008 as early as possible
preferably within eight weeks from the
date of communication of this order, but
in any case, not later than three months.

21.

Thus
writ
petition
is,
accordingly, allowed.

22. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.03.2014

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Civil Misc. Writ Petition No. 17066 of 2014

Prof. Ram Chandra. .................Petitioner
Versus
State of U.P. & Ors. ............Respondents

Counsel for the Petitioner:
Sri J.P. Kushwaha, Sri Virendra Kumar, Sri
R.K. Ojha

Counsel for the Respondents:
C.S.C., Sri U.N. Sharma, Sri Neeraj Tiwari,
Sri Neeraj Tripathi
(A)State Universities Act-1973-Section
68-Suo
moto
action
by
chancellorpetitioner was appointed on post of
lecturer
in
Geology-while
vacancy
advertised for post of Professor-in which
petitioner
not
found
suitable-heldappointment against vacancy without
advertisement-illegal.

Held:Para-18
We, therefore, see no reason to interfere
with the order of the Chancellor wherein
he has held the appointment of the
petitioner as Lecturer in the year 2002
and Reader in the year 2003 in the
subject of Geology was illegal being in
the teeth of the statutory provision of
Section 31 of the U.P. State Universities
Act, 1973.

(B)State
Universities
Act-1973-Section
31(1) and (4)-Appointment on post of
reader-selection committee not constituted
as per statutory requirement-V. C.-due to
the reason best to him-constituted same
selection
committee-who
had
earlier
recommended for appointment on post of
lecturer without advertisement-held-illegalhowever salary already drawn by petitioner
shall not be returned.

Held:Para-25
Even otherwise if substantial justice against
technical objection are pitted against each
other interest of substantial justice must
prevail. Universities are institutions of
learning and if illegal appointments are
permitted
to
be
perpetuate
in
such
institutions,
only
God
can
save
the
education
in
the
State.
If
the
Vice
Chancellor who is the Chief Executive of the
University himself acts unfairly as has been
noticed by the Chancellor in the order
impugned, this Court will not interfere with
the order of the Chancellor which has the
effect of curing the said illegality.

Case Law Discussed:
Civil Appeal No. 979 of 2014; AIR 1936 PC
253.

(Delivered by Hon'ble Arun Tandon, J.)
572 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri R.K. Ojha, Senior
Advocate on behalf of the petitioner,
Standing Counsel on behalf of respondent
no.1, Sri Neeraj Tripathi, advocate on
behalf of respondent no.2, Sri U.N.
Sharma, Senior Counsel assisted by Sri
Neeraj Tiwari, advocate on behalf of
respondents no.3 and 4.

2. The petitioner before this Court
seek
quashing
of
the
order
dated
03.03.2014 passed by the Chancellor,
Bundelkhand University, Jhansi i.e. the
Governor of the State of Uttar Pradesh as
well as the consequential order dated
07.03.2014
issued
by
Registrar,
Bundelkhand
University,
Jhansi
in
compliance thereof (annexure nos.10 &
11 to the writ petition respectively).

3. The facts in short giving rise to
the present writ petition are as follows:

4. The Bundelkhand University,
Jhansi is a University established under
the
provisions
of
the
U.P.
State
Universities
Act,
1973
(hereinafter
referred to as the Act 1973). The
University is said to have published
advertisement for making appointment on
the post of Professor in the year 2002
being Advertisement No.3/2001. This
advertisement did not include any post of
Lecturer in the department of Geology.

5. The petitioner applied in response
to
the
advertisement.
A
Selection
Committee in accordance with Section 31
sub-section 4 of the Act 1973 was
constituted which included two experts
nominated by the Chancellor of the
University. The Selection Committee did
not find the petitioner suitable for the post
of Professor but surprisingly, it is alleged
that
the
Selection
Committee
recommended that the petitioner may be
appointed on the post of Lecturer. The
post thereof was not subject matter of the
advertisement. This recommendation was
acted upon by the University and the
petitioner is said to have been appointed
as Lecturer vide order dated 28.02.2002.

6. It appears that there was another
advertisement published by the University
for the post of Reader in the subject of
Geology being Advertisements No.2 of
2002 and 3 of 2002. The vacancy for the
post of Reader in the subject of Geology
was reserved for the other backward class
category to which the petitioner belongs.
The Selection Committee is said to have
held selection and to have recommended
the name of the petitioner for appointment
as Reader vide its recommendation dated
30.01.2003. This recommendation of the
Selection Committee for appointment of
the petitioner as Reader was accepted by
the Executive Council of the University in
its meeting held on 01.02.2003. This
resulted in the issuance of appointment
letter in favour of the petitioner. The
petitioner
joined
and
continued
to
function as Reader in terms of the said
appointment letter. He was also granted
benefit of career advancement scheme and
promoted as Professor.

7. It appears that certain complaints
were received by the Chancellor of the
University in respect of the appointment
of the petitioner. The Chancellor under
Section 68 (a) of the Act 1973 decided to
exercise suo motu power having regard to
seriousness of the allegations made. The
Chancellor issued notice to the University
as well as to the petitioner to show cause
in the matter of his appointment as Reader
and Lecturer both being illegal. The
University in response to the notice
2 All] Prof. Ram Chandra Vs. State of U.P. & Ors.
573
produced the
original records. The
petitioner also submitted his reply which
has been examined in detailed by the
Chancellor under the order impugned
dated 03.03.2014.

8. It has been recorded that
appointment of the petitioner as Lecturer
in terms of Advertisement No.5 of 2001
was patently illegal, as no post of Lecturer
in the subject of Geology was included
under
the
advertisement.
Therefore,
appointment against the non-advertised
vacancy was illegal.

9. The appointment on the post of
the Reader in the subject of Geology in
terms of Advertisements No. 2 of 2002
and 3 of 2002 was also illegal for the
following reasons; (a) the Selection
Committee for appointment of Reader in
the University has to be constituted in
accordance with the provisions of Section
31 sub-clause 4 i.e. it has to be comprise
of two experts to be appointed by the
Chancellor amongst others; (b) neither
any request was received from University
for appointment of two experts for
constituting the Committee in response to
the aforesaid Advertisements No.2 of
2002 and 3 of 2002 nor any expert in
accordance with Section 31 (4) of the Act
was
appointed
by
the
Chancellor.
Therefore,
the
constitution
of
the
Selection Committee which selected the
petitioner itself was patently illegal; (c)
the Vice Chancellor for the reasons best
known to him had constituted the same
Selection Committee which had earlier
recommended the petitioner for the post
of Lecturer when the post advertised was
that
of
Professor.
Therefore,
the
Chancellor has recorded his satisfaction
that the Vice Chancellor had not acted
fairly in the matter of the constitution of
the Selection Committee which selected
the petitioner.

10. So far as the findings recorded
on the issue of the appointment of the
petitioner as Lecturer in terms of
Advertisement No.5 of 2001 is concerned,
nothing much could be added by the
counsel for the petitioner. He fairly
conceded that in absence of the post of
Lecturer in the subject of Geology being
included in the Advertisement No.5 of
2001,
there
could
have
been
no
recommendation
by
the
Selection
Committee
for
appointment
of
the
petitioner as Lecturer. If the petitioner
was not found suitable for the post of
Professor,
the
Selection
Committee
should have closed the selection after
recording its satisfaction to that effect.

11. We find that the reasons
assigned by the Chancellor in the order
impugned for coming to the conclusion
that the appointment of petitioner as
Lecturer against non-advertised post was
illegal does not warrant any interference
from this Court under Article 226 of the
Constitution of India.

12. We may record that repeatedly
the Apex Court has held that there can be
no appointment against non-advertised
vacancy and any attempt to the contrary
would be in violation of Article 14 of the
Constitution of India. Reference Renu and
others Vs. District & Sessions Judge, Tees
Hazari & others in Civil Appeal No.979
of 2014 decided on 12.02.2014.

13. Now turning to the issue of
appointment of the petitioner as Reader.
At the very outset we may record that
Section 31 (1) of the Act 1973 as
applicable on the relevant date provides
574 INDIAN LAW REPORTS ALLAHABAD SERIES
that the teachers of the University and the
teacher of an affiliated or associated
college shall be appointed by the
Executive
Council
on
the
recommendation
of
the
Selection
Committee in the matter hereinafter
specified. Meaning thereby that all other
modes of appointment except on the
recommendation
of
the
Selection
Committee constituted under the Subclause of Section 31 of the Act 1973 is
barred. Any infraction in the matter of the
constitution of the Selection Committee
as provided under Section 31 (4) would
render the appointment contrary Section
31 to the U.P. State Universities Act,
1973, therefore, patently illegal.

14. would be worthwhile to
reproduce Section 31 (1) and Section 31
(4) of the Act 1973 which read as follows:

31. Appointment of Teachers.-(1)
Subject to the provisions of this Act, the
teachers of the University and the teacher
of an affiliated or associated college
(other
than
a
college
maintained
exclusively by the State Government [* *
*] shall be appointed by the Executive
Council or the management of the
affiliated or associated college, as the case
may be, on the recommendation of a
Selection Committee in the manner
hereinafter
provided
[The
Selection
Committee shall meet as often as
necessary]

31 (4) (a) the Selection Committee
for the appointment of a teacher of the
University (other than the Director of an
Institute and the Principal of a constituent
college), shall consist of-

(i) the Vice-Chancellor who shall be
the Chairman thereof,

(ii) the Head of the Department
concerned:

Provided that the Head of the
Department shall not sit in the Selection
Committee, when he is himself a
candidate for appointment or when the
post concerned is of a higher rank than his
substantive post and in that event his
office shall be filled by the Professor in
the Department and if there is no
Professor by the Dean of the Faculty:

[Provided further that where the
Chancellor is satisfied that in the special
circumstances of the case, a Selection
Committee cannot be constituted in
accordance with the preceding proviso, he
may direct the constitution of the
Selection Committee in such manner as
he thinks fit.]

(iii) in the case of a Professor or
Reader, three experts, and in any other
case, two experts be nominated by the
Chancellor;"

15. It is apparently clear that the
Selection Committee for the selection on
the post of teachers in the University,
which would include the post of Reader,
has to comprise of three experts to be
nominated by the Chancellor.

16. It is admitted on record that so
far as the Selection Committee constituted
with reference to Advertisements No.2 of
2002 and 3 of 2002 for the post of Reader
in the department of the Geology is
concerned, neither the University asked
for names of the three experts to be
nominated for the Selection Committee
nor in fact any experts were nominated by
the
Chancellor
for
the
Selection
Committee to be constituted. In absence
of Selection Committee having been
constituted in terms of Section 31 (4) of
the Act, 1973, any recommendation by
the unauthorized Selection Committee
would be of no legal consequence.
2 All] Prof. Ram Chandra Vs. State of U.P. & Ors.
575
Therefore, appointment of the petitioner
even if accepted by the Executive Council
would be contrary to Section 31 of the
Act 1973, therefore, per se void.

17. From the order of Chancellor, we
further find that he is correct in recording that
the Vice Chancellor, Bundelkhand University,
Jhansi could not have constitute the Selection
with reference to Advertisements No.2 of
2002 and 3 of 2003 as was done in the facts of
the case. He is also right in recording that the
Vice Chancellor deliberately constituted the
same Selection Committee which had
recommended the petitioner for appointment
as Lecturer when no such post had been so
advertised under Advertisement No.5 of 2001.
The inference drawn by the Chancellor is
more than justified.

18. We, therefore, see no reason to
interfere with the order of the Chancellor
wherein he has held the appointment of
the petitioner as Lecturer in the year 2002
and Reader in the year 2003 in the subject
of Geology was illegal being in the teeth
of the statutory provision of Section 31 of
the U.P. State Universities Act, 1973.

19. We will now examine the issues
which has been canvassed by Sri R.K.
Ojha, Senior Advocate on behalf of the
petitioner; (a) that the power of the
Chancellor to act suo motu under Section
68 of the Act is hedged with the condition
that he cannot entertain any such
grievance after expiry of three months
from the date when the question could
have been raised for the first time; (b) that
absolutely no special satisfaction was
recorded in the order by the Chancellor
for exercise of his suo motu power.

20. For consideration of the
aforesaid two contentions raised on behalf
of the petitioner, it is worthwhile to
reproduce Section 68 of the Act 1973
which reads as follows:-

68. Reference to the Chancellor.- If
any question arises whether any person
has been duly elected or appointed as, or
is entitled to be, member of any authority
or other body of the University, or
whether any decision of any authority or
officer of the University [including any
question as to the validity of a Statute,
Ordinance or Regulation, not being a
Statute or Ordinance made or approved by
the
State
Government
or
by
the
Chancellor)] is in conformity with this
Act or the Statutes or the ordinance made
thereunder, the matter shall be referred to
the Chancellor and the decision of the
Chancellor thereon shall be final :

Provided that no reference under this
section shall be made-

(a) more that three months after the
date when the question could have been
raised for the first time;

(b) by any person other than an
authority or office of the University or a
person aggrieved :

Provided further that the Chancellor
may in exceptional circumstances-

(a) act suo motu or entertain a
reference after the expiry of the period
mentioned in the preceding proviso;

(b) where the matter referred relates
to a dispute about the election and the
eligibility of the person so elected is in
doubt, pass such orders of stay as he
thinks just and expedient;"

21. From simple reading of Section
68 of the Act, it is apparently clear that
limitation of three months' period from
the date the question could be raised as
well as person raising the objection
answering
with
description
of
the
aggrieved person are both relateable to a
576 INDIAN LAW REPORTS ALLAHABAD SERIES
reference to be made by a third person.
These conditions relateable to the exercise
of suo motu power of the Chancellor.
Therefore, we are inclined to hold that so
far as the exercise of suo motu power by
the Chancellor is concerned, neither any
limitation is prescribed under Section 68
of the Act nor first proviso has any
applicability in that respect.

22. So far as the issue of recording
of reasons disclosing the exceptional
circumstances for exercise of suo motu
power is concerned, we may record that it
is not necessary that the Chancellor
should specifically so mention in the
order itself, as to what exceptional
circumstances require him to act if
exceptional circumstances can be easily
ascertained from the order itself.

23. From the order, we find that
certain complaints were received in the
matter of illegal appointment of the
petitioner and the Chancellor had written
a letter as early as on 24.01.2011 to the
Vice Chancellor to submit his comments
and records in the matter of appointment
of the petitioner. It took three years for
the University to respond and the records
were made available to the Chancellor
only on 09.01.2014.

24. We may record that the
Chancellor is the Head of the Universities
established under the provisions of the
U.P. State Universities Act 1973. It is his
primarily responsibility to see that the
provisions of the Act are carried out in
letter and spirit. If a Vice Chancellor of
such a University decides to act contrary
to the Act 1973 to make an appointment
dehors the same, the Chancellor must act
and if the Chancellor acts, this Court will
not interfere.

25. Even otherwise if substantial
justice against technical objection are
pitted against each other interest of
substantial
justice
must
prevail.
Universities are institutions of learning
and if illegal appointments are permitted
to be perpetuate in such institutions, only
God can save the education in the State. If
the Vice Chancellor who is the Chief
Executive of the University himself acts
unfairly as has been noticed by the
Chancellor in the order impugned, this
Court will not interfere with the order of
the Chancellor which has the effect of
curing the said illegality.

26. Now turning to the other issue
which has been raised by Sri R.K. Ojha,
Senior Advocate on behalf of the
petitioner, namely that the petitioner as on
date has worked for nearly 12 years as
Lecturer and, therefore, this Court may
interfere with the order of the Chancellor
which has set aside his appointment as
Reader only because of the illegality in
the
constitution
of
the
Selection
Committee
specifically
in
the
circumstances when the petitioner had no
role to play in the constitution of the
Selection
Committee
by
the
Vice
Chancellor. He submits that the experts
did participate in the selection.

27. It is the settled principle of law
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
2 All] Gitti Balu Truck Operator Association Varanasi Vs. State of U.P. & Ors.
577
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.

28. If Section 31 (4) of the Act requires
the Selection Committee for the post of
Reader of the University to comprise of three
experts to be nominated by the Chancellor
then no other Selection Committee can be
constituted which does not include such
nominees from the Chancellor.

29. We, therefore, find no substance
in the contention raised on behalf of the
petitioner.

30. Although we are of the opinion
that it is hard to remove the petitioner
because of the fault committed by the
University
in
the
matter
of
the
constitution of the Selection Committee
after more than 12 years of the alleged
selection but hardship to the petitioner
cannot be a ground to permit illegal
appointments.
We
may
not
direct
recovery of the salary paid to the
petitioner
because
of
his
illegal
appointment but his continuance will not
be perpetuated by this Court any further.

31. So far as the plea that other
appointments of like nature are being
permitted by the University to continue
and no action has been taken against them
is concerned, we clarify that having
received the order of the Chancellor now
which has clarified the position with regard
to
the
constitution
of
the
Selection
Committee and effect on selection made with
reference to illegally constituted Selection
Committee, the University must revisit all
such appointment which has been made
contrary to Section 31 of Act and shall deal
with him uniformly without any favoritism.

32. Learned counsel for the petitioner
has placed reliance upon Section 66 of the
Act for submitting that even if certain
unauthorized person has taken part in the
Selection Committee, proceedings may not
be invalid. The contention has only been
raised on behalf of the petitioner to be
rejected. The constitution of the Selection
Committee with experts to be nominated by
the Chancellor is statutory requirement and if
no expert were asked for or appointed by the
Vice Chancellor, it cannot be said that there
was a defect covered by Section 66 (b) of the
Act.

33. For the reasons recorded above,
the writ petition is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.04.2014

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE VIVEK KUMAR BIRLA, J.

Civil Misc. Writ Petition No. 18330 of 2014

Gitti Balu Truck Operator Association
Varanasi ......................... Petitioner
Versus
State of U.P. & Ors. ......Respondents

Counsel for the Petitioner:
Sri N.L. Pandey, Sri Suyash Pandey

Counsel for the Respondent:
C.S.C., Sri V.K. Singh, Sri R.P. Srivastava