# Raj Kishore Pathak v. Chancellor, D.D.U., Gorakhpur and others

- **Citation:** (2007) 3 ILRA 1039
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-05-17
- **Case number:** Civil Misc. Writ Petition No.34774 of 1999
- **Bench:** Anjani Kumar, Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kishore-pathak-v-chancellor-d-d-u-gorakhpur-and-others-40994
- **Pages:** 5

## Headnote

U.P. State Universities Act 1973-Section68-Eiligibility-whether for the Post of
Reader in Law can be filled up by
candidate having be research work in
Political
Science
"A
problem
in
constitutional Hermeneutics? Held-"No"-
view taken by Vice-Chancellor correct
can not be interfered by writ court.

Held: Para 4

The Chancellor, therefore, found that the
research work done by the petitioner,
Raj Kishore Pathak, cannot be said to be
research work in connection with Law
Faculty or in the subject of Law and,
therefore, the Chancellor has held that
since the petitioner, Raj Kishor Pathak,
did not possess requisite qualification for
appointment to the post of Reader,
therefore,
the
appointment
of
the
petitioner as Reader is cancelled. The
petitioner has challenged this order by
means of the present writ petition and
the order dated 13th August 1999 which
is consequential order communicated by
the Registrar of the University.
Case law discussed:
1040 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
1990 (4) SCC-570, 1994 (1) UPLBEC 312 (DB),
1997 (2) SCC-560, W.P. No. 111- (S/B) of
1993 decided on 16.9.96.

## Text

3 All] Raj Kishore Pathak V. Chancellor, D.D.U., Gorakhpur and others
1039
subject to the three exceptions carved out.
In short the aforesaid rules in a way
adopts the analogy of Article 311 of the
Constitution of India and contemplates
not to condemn any person without
affording
reasonable
opportunity
of
hearing to him. Admittedly, in the present
case no disciplinary enquiry was initiated
against the petitioner and the petitioner
has not been found guilty of any
misconduct in any such enquiry so as to
inflict the punishment of dismissal from
service. In fact the principles of natural
justice which are applicable to the whole
range of subjects particularly to the
matters
of
imposing
punishment
contemplates of giving two opportunities
to the delinquent, one before the inquiry
officer and the other by the disciplinary
Authority before passing the final order of
punishment on the basis of the report of
the inquiry officer. Here as the petitioner
was not subjected to any disciplinary
proceedings, he was not given any
opportunity to defend himself at any stage
and the order of punishment was passed
in clear violation of the principles of
natural justice. Thus as the impugned
order is clearly within the teeth of the
principles of natural justice and has been
passed in violation of Rule 7 of the U.P.
Government servants (Discipline and
Appeal) Rules, 1999, it is liable to be
quashed. Accordingly, a writ of certiorari
is issued quashing the impugned order
dated 17.5.2005 (Annexure-10 to the writ
petition) with liberty to the disciplinary
authority
to
take
action
afresh, if
necessary, in accordance with law.

9. The petition succeeds and is
allowed with costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2007

BEFORE
THE HON'BLE ANJANI KUMAR, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.34774 of 1999

Raj Kishore Pathak

...Petitioner
Versus
Chancellor
Deen
Dayal
Upadhyaya,
Gorakhpur University, Gorakhpur and
others

...Respondents

Counsel for the Petitioner:
Sri Ramesh Upadhyaya

Counsel for the Respondents:
Sri Neeraj Tripathi
Sri R.K. Ojha

U.P. State Universities Act 1973-Section68-Eiligibility-whether for the Post of
Reader in Law can be filled up by
candidate having be research work in
Political
Science
"A
problem
in
constitutional Hermeneutics? Held-"No"-
view taken by Vice-Chancellor correct
can not be interfered by writ court.

Held: Para 4

The Chancellor, therefore, found that the
research work done by the petitioner,
Raj Kishore Pathak, cannot be said to be
research work in connection with Law
Faculty or in the subject of Law and,
therefore, the Chancellor has held that
since the petitioner, Raj Kishor Pathak,
did not possess requisite qualification for
appointment to the post of Reader,
therefore,
the
appointment
of
the
petitioner as Reader is cancelled. The
petitioner has challenged this order by
means of the present writ petition and
the order dated 13th August 1999 which
is consequential order communicated by
the Registrar of the University.
Case law discussed:
1040 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
1990 (4) SCC-570, 1994 (1) UPLBEC 312 (DB),
1997 (2) SCC-560, W.P. No. 111- (S/B) of
1993 decided on 16.9.96.

(Delivered by Hon'ble Anjani Kumar, J.)

1. This writ petition under Article
226 of the Constitution of India by the
petitioner, Raj Kishore Pathak, challenges
the order passed by the Chancellor, Deen
Dayal Upadhyaya Gorakhpur University,
Gorakhpur (hereinafter referred to as the
University) dated 9th August 1999 and
the consequential order dated 13th August
1999 passed by the Vice Chancellor of the
University. The Chancellor by its order
impugned dated 9th August 1999 decided
the representation filed by respondent
no.3, Anirudh Prasad, under Section 68 of
the U.P. State Universities Act 1973
(hereinafter referred to as the Universities
Act). Respondent no.3, Anirudh Prasad,
has challenged the appointment of the
petitioner, Raj Kishore Pathak on the post
of Reader in the Law Faculty of the
University.

2. The case of respondent no.3 is
that the post of Reader in Law Faculty
and the appointment of the petitioner, Raj
Kishore
Pathak,
is
wholly
illegal,
inasmuch as the petitioner Raj Kishore
Pathak did not possess the requisite
qualification for appointment as Reader in
Law Faculty. The Selection Committee in
its meeting dated 10th October 1997 has
interviewed the candidates including the
petitioner, Raj Kishore Pathak, and found
that except for the petitioner, Raj Kishore
Pathak, everybody possesses the requisite
educational
qualification
including
respondent no.3. With regard to the
petitioner Raj Kishore Pathak it is stated
that he has obtained his Post Graduation
Degree in Political Science and has also
done his research work in Political
Science whereupon he was awarded a
Doctorate Degree by the University. The
recommendation
of
the
Selection
Committee was accepted by the Executive
Council by its resolution dated 11th
October 1998. Respondent no.3 has
alleged in his representation to the
Chancellor that the respondent no.3 being
a member of the Executive Council has
recorded
his
dissent
against
the
recommendation of the appointment of
Sri Raj Kishor Pathak but the then
Chairman of the Selection Committee,
Professor R.K. Misra, was all out for
recommending the name of the petitioner,
Raj Kishore Pathak. Respondent no.3 has
further submitted in his representation to
the Chancellor that he has annexed a copy
of the judgment of the Supreme Court in
the case of Dr. Triloki Nath Singh vs. Dr.
Bhagwan Bhagwan Din Misra, (1990) 4
SCC 510, whereby the Apex Court has
categorically observed that for the post of
Reader the research should be in the
subject concern, therefore, a degree in the
subject of Political Science cannot be
considered as a degree required for
appointment as Reader in Law Faculty.
The petitioner, Raj Kishore Pathak, has
passed his graduation (B.Sc.) in III
division and therefore does not possess
requisite qualification for appointment as
teacher within the phrase of ''consistent
good academic record'. Respondent no.3,
therefore, prayed for setting aside the
order of approval of the recommendation
for appointment of Sri Raj Kishore
Pathak, the petitioner.

3. On a notice being issued by the
Chancellor, the petitioner submitted his
reply denying all these allegations. The
University
has
also
submitted
its
comments before the Chancellor. The
3 All] Raj Kishore Pathak V. Chancellor, D.D.U., Gorakhpur and others
1041
University has taken stand before the
Chancellor that respondent no.3 cannot be
said to be an aggrieved person who can
approach the Chancellor under Section 68
of the Universities Act. The University
submitted that before the Selection
Committee for the appointment to the post
of Reader in Law the petitioner, Raj
Kishore Pathak, who was already working
in the Law Faculty as reader, along with
four others, was present before the
Selection Committee. The University has
also denied the allegations of mala fides
in favour of the petitioner, Raj Kishore
Pathak. The University's stand before the
Chancellor
is
further
that
in
the
curriculum of Law, Constitutional Law is
one of the subjects and, therefore, the
research work done by the petitioner,
which
is
one
of
the
topics
of
Constitutional Law, can be said to be a
research work done by the petitioner in
law department and in Political Science
department. The petitioner, Raj Kishor
Pathak, apart from having passed B.Sc,
has passed B.A. also in which he has
secured more than 54% marks, therefore,
the stand taken by respondent no.3 that he
does not possess the consistant good
academic record is incorrect.

4. The Chancellor on the pleadings
of the parties before him has observed
that the main question for decision
between the parties is as to whether the
petitioner, Raj Kishore Pathak, having
been appointed on the post of Lecturer in
the University in the Law Faculty is
eligible to be promoted or appointed as
Reader or not and whether the petitioner,
Raj Kishore Pathak, possesses requisite
qualification of Doctorate in the subject of
Law or not. The Chancellor has found that
according to statutes of the University,
apart
from
having
consistent
good
academic record, the candidate must
possess Doctorate degree or the published
work of the candidate must be of a high
standard and the candidate should have
possessed the experience of teaching. In
addition
to
the
above
the
further
requirement was that he must have
worked as teacher for five years and out
of that must have Lecturer for at least
three years and have guided students for
research. The Chancellor has found that
the main controversy is as to whether the
petitioner, Raj Kishore Pathak, possesses
the Doctorate degree in Political Science
or
in
the
subject
of
Law.
After
considering the case set up by the
petitioner,
Raj
Kishore
Pathak,
the
Chancellor has arrived at a conclusion
that no doubt the Constitution is one of
the subjects in the Political Science but in
the context of research conducted by the
petitioner
in
the
Political
Science
department cannot be said to be the
research work done by the petitioner in
the Constitutional Law. The Chancellor
has recorded a finding that it is so because
the study of Constitution in the context of
Political Science is different than in the
context
of
Law.
The
Chancellor,
therefore, found that the research work
done by the petitioner, Raj Kishore
Pathak, cannot be said to be research
work in connection with Law Faculty or
in the subject of Law and, therefore, the
Chancellor has held that since the
petitioner, Raj Kishor Pathak, did not
possess
requisite
qualification
for
appointment to the post of Reader,
therefore,
the
appointment
of
the
petitioner as Reader is cancelled. The
petitioner has challenged this order by
means of the present writ petition and the
order dated 13th August 1999 which is
consequential order communicated by the
Registrar of the University.
1042 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
5. We have heard learned counsel
for the parties.

6. The brief facts as emerge out of
pleadings are that the petitioner, Raj
Kishore Pathak, before joining the post of
Reader in the University on 11.10.1998
was working as Reader in Sant Vinoba
Post Graduate College, Deoria which is a
college affiliated to the University. The
petitioner was appointed in the said
college in Deoria in 1983 as Lecturer and
in the year 1996 he had been awarded
Ph.D Degree while working in the
University as Lecturer in the Post
Graduate College at Deoria for his thesis
on "Semantics of the State under Article
12 of the Indian Constitution (A problem
in constitutional Hermeneutics". This
thesis according to the petitioner is based
on Article 12 of the Constitution of India
which is a very important constitutional
provision,
hence
covered
by
the
qualification required for appointment as
Reader by Statute 11.02 of the First
Statute of the University and the view
taken by the chancellor to the contrary is
arbitrary and illegal.

7. The petitioner has categorically
pleaded that the mere fact that the Ph.D
was awarded by the Department of
Political Science of the University will
not affect in any way the eligibility of
petitioner for the post of Reader. The
petitioner has attacked the maintainability
of the reference filed by the respondent
no.3 under Section 68 of the Universities
Act. That the representation challenging
the appointment of the petitioner to the
post of Reader that the petitioner's
appointment was not in accordance with
the statute cannot be entertained by the
Chancellor inasmuch as respondent no.3
cannot be said to be a person aggrieved
within the meaning of Section 68 of the
Universities Act.

8. The order passed by the
Chancellor dealt with this objection of the
petitioner in the impugned order and has
held that the proviso of Section 68 of the
Act confers power on the Chancellor to
act suo motto and this power is being
exercised while passing the impugned
order by the Chancellor suo motto. The
petitioner's contention further is that the
petitioner has already worked as Reader
in Law in Deoria on the pay scale meant
for
the
Reader
of
the
University;
therefore, the impugned order has ruined
his
career.
The
contention
of
the
petitioner is that the University is
supporting the petitioner. The Selection
Committee has found that the research
work
of
the
petitioner,
namely,
"Semantics of the State under Article 12
of the Indian Constitution (A problem in
constitutional Hermeneutics" has been
treated to be research work in the Faculty
of Law and, therefore, the order passed by
the Chancellor deserves to be quashed.

9. As against this contention of the
petitioner, the State counsel representing
the Chancellor and also the learned
counsel for respondent no.3 has relied
upon a decision of the Apex Court in the
case of Dr. Triloki Nath Singh Vs. Dr.
Bhagwan Das Misra reported in (1990) 4
SCC 510 (Paras 10 and 13) and the case
of Dr. M. Ismail Faruqi Vs. State of U.P.
and others 1994 (1) UPLBEC 312
(D.B.),
Committee
of
Management
Vasant College Vs Tribhuvan Nath
Tripathi, (1997) 2 SCC 560 (Para 20)
and other cases. In reply to the objection
raised by the petitioner, regarding the
representation filed by respondent no.3,
learned counsel for the respondent has
3 All] Umesh Chandra Jaiswal V. State of U.P. and others
1043
relied upon a decision of a Division
Bench of this Court in the case of Dr.
R.R.K.
Shukla
Vs.
Chancellor,
University of Lucknow and others (Writ
Petition No.1110 (SB) of 1993) and the
case of Dr. Banvir Singh Vs. Chancellor
of Lucknow University (Writ Petition
No.132 (SB) of 1993, both decided on
16th September 1996, wherein a similar
objection has been dealt with by a
Division Bench of this Court.

10. In view of what has been stated
above and law laid down, referred to
above, we find that the view taken by the
Chancellor does not suffer from any
illegality or infirmity which may warrant
interference by this Court under Article
226 of the Constitution of India. This
petition is, therefore, devoid of merits and
is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.11.2007

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 56693 of 2007

Umesh Chandra Jaiswal
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri D.K. Mishra
Sri R.K. Singh

Counsel for the Respondents:
S.C.

Constitution of India, Art. 226-RejectionService law rejection of candidaturebeing overage-on 1.1.06 the cut off datepetitioner completed 40 years on 30.6.06
being O.B.C. candidate overage by one
day-even if allowed to participate in
preliminary test-can not be treated
estoppal-held-rejection-proper.

Held: Para 10

As per the specific condition contained in
the advertisement itself, the petitioner
was overage and, therefore, could not
have been allowed to appear in the
recruitment for the post of Assistant
Prosecution Officer. The mere fact that
the respondents no. 2 and 3 permitted
the
petitioner
to
appear
in
the
preliminary test would not operate as
estoppal against the respondents from
rejecting his candidature on the ground
that he was overage since it is a
condition with respect to eligibility and if
some error has crept in, on account
whereof
the
authorities
permitted
candidate to participate at some stage of
selection, that would not operate as
waiver
or
estoppal
against
the
authorities for permitting the candidate
to appear in selection despite the fact
that he is not eligible. In the present
case, the petitioner having been born on
01.07.1966
was
clearly
overage
on
01.07.2006 and, therefore, in our view,
his
candidature
has
rightly
been
cancelled by the U.P. Public Service
Commission and we do not find any fault
or reason to interfere in the said decision
of the Commission.
Case law discussed:
L.R. (1918) I Ch.-263, L.R. (1930) 1 K.B.-741,
AIR 1967 Mysore 1359, AIR 1986 SC-1948 Spl.
Appeal No (221)/2004 decided on 8.9.06.

(Delivered by Hon'ble S. Rafat Alam, J.)

1. In the instant petition the sole
petitioner has come up for quashing of the
order of Public Service Commission,
Allahabad dated 05.11.2007 intimating
that his form and fee for appearing in the
test for appointment to the post of