# Union v. Jawaharlal Nehru University and another

- **Citation:** High Court of Judicature at Allahabad #39510
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-v-jawaharlal-nehru-university-and-another-39510
- **Pages:** 7

## Text

6 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
has been held that in the absence of mala fide
or any other material, High Court should have
preferred to accept the Selection Committee's
version
and
to
require
the
Selection
Committee to justify each and every selection
made by it, amounts to imposing an
impossible burden on it. In Jawahar Lal
Nehru
University
Students'
Union
V.
Jawaharlal Nehru University and another
(A.I.R. 1985 S.C.-567), the apex court held
that court should not interfere with academic
policy which has a rational basis and is not
arbitrary. In Krishna Priya Ganguly etc.etc.
V. University of Lucknow and others (A.I.R.
1984 S.C.-186), the apex court laid down
guideline to the effect that High Court, in its
extraordinary jurisdiction under Article 226 of
the Constitution of India, cannot devise its
own criterion and has no jurisdiction to
introduce its notions in academic matter. The
High Court was not competent to do so and
had no jurisdiction to import its own ideology.
Similarly, in Dr. M.C. Gupta V. Dr. A.K.
Gupta and others (1979 Lab.I.C.-296),
Hon'ble Supreme Court held that when
selection of a candidate is made by a
Commission aided and advised by experts
having
technical
experience
and
high
academic qualifications in the specialized
field probing teaching/research experience in
technical subjects, the Courts should be slow
to interfere with the opinion expressed by
experts unless there are allegation of mala
fides against them. It would normally be
prudent and safe for the Courts to leave the
decision of academic matters to experts who
are more familiar with the problems the face
than the Courts generally can be. To the same
effect was the view of apex court way back in
1966 in Principal Patna College, Patna and
others V. Kalyan Srinivas Raman (A.I.R.
1966 SC-707), wherein it held that in dealing
with matters relating to orders passed by
authorities of educational institutions, the
High Court should normally be very slow to
intervene
under
Article
226
of
the
Constitution because the matters falling
within the jurisdiction of the educational
authorities should normally be left to their
decision and the High Court should interfere
with them only when it thinks it must do so in
the interest of justice. It is thus settled and
firm proposition of law that the Court should
be extremely reluctant to substitute its own
views as to what is wise, prudent and proper
in relation to academic matters in preference
to those formulated by professional men
possessing
technical
expertise
and
rich
experience in the field.

15. In the conspectus of the facts narrated
above, it is well established that the petitioner
has resorted to unfair means. The faint and
bald allegation of mala fide on the part of the
Selection Committee remains unsupported by
any tangible evidence. It is merely an
ornamental plea. The case fails both on legal
and factual matrix.
16. Before parting it may be observed that
the Director General, Medical Education,
Ministry
of
Health,
U.P.
Government,
Lucknow - respondent no. 3 shall move the
State Government to ensure that a full fledged
enquiry into the matter is conducted by
C.B.I./Vigilance so that the truth may be
unearthed and appropriate action can be taken
against the recalcitrant Centre Superintendent
and other members of the staff as well as the
concerned Coaching Institute.

17. The writ petition is accordingly
dismissed. The interim order dated 6.9.1999 is
discharged. Parties shall bear their own costs.
---------
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By the Court

1. This Special Appeal has been preferred
against the judgement and order passed by
single Judge dismissing the writ petition
no.13165 of 1996 on the ground that there is
no provision of counting the intending period
from the date of discharge to the date of reenrolement towards qualifying service to earn
minimum pension and the seniority of the
appellant may be counted w.e.f. 10.4.93, the
date on which the claim rested has been cited,
that the appellant may be allowed to continue
in service even after attaining the age of 40
years to complete the qualifying service to
earn minimum pension.

2. The events and the circumstances
constituting the facts having bearing on the
decision of this appeal, are that the appellant
was enrolled in June, 1977 as Sepoy/Driver
(MT) in Army service Corps.and after
requisite training he was posted as Class -III
Driver. As the luck would have he met with
an accident in August, 1980.He sustained
severe injuries, resulting in fracture of mid
shaft femur. Because he met with the accident
when he was on bonafide Government duty,
he was allowed to continue in army service
and was treated at various military hospitals..
After
completion
of
the
treatment
his
disability was surveyed and classified in
category "BEE" with disability less than 20%.
He was, therefore, discharged from the
service in ;the month of September, 1987.
With a view to ventilate grievance, he filed
Civil Misc.Writ Petition no.21823 of 1987.
The said writ petition was heard and disposed
of by judgement and order dated 28.1.1992
with the observation that-

" In the circumstances of the case, if the
petitioner is still entitled to get the benefits of
the
above
provisions
and
he
makes
appropriate application for it within a month
from
today,
his
application
shall
be
considered and decided according to the Rules
within a period of three months from the date
of its receipt and the decision taken thereon
will be intimated to him"

3. In pursuance to the above order the
appellant moved an application for reenrolment and mustering as JCO (RT)
Religious Teacher (Pandit). The appellant was
re-enrolled as Driver (MT) in SC (NT) w.e.f.
10.4.93 in terms of the provisions contained in
Regulation 143 of the Army Act. However,
the claim of the appellant for his mustering as
JCO (Pandit) was rejected by the authority
concerned. Consequent upon he filed another
Civil Misc.Writ Petition No. 13885 of 1995
8 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
before this court. This petition was disposed
by the judgement and order dated 27.11.1996
with the observation that -

" So far as the claim for posting as JCO (RT)
is concerned, in paragraph 21 of the counter
affidavit it has been pointed out that the post
of JCO (RT) is a Commissioned post of
junior officer, for which certain requisite
qualifications are necessary. The petitioner do
not possess requisite qualification, therefore,
he cannot be considered for the same.
Admittedly, the petitioner was a Sepoy which
is the lowest rank in Army. On re-enrolment
he cannot be posted in a post higher than the
post he had held. From the Army Instruction
no. 204 it appears that the recruitment in the
post of JCO (RT) is made direct from the rank
of Jamadar or Naib Subedar in the ratio of 3.1
provided they fulfil age limit of 25-35 years
and are found medically fit in the category
"AYE"
and
possess
the
educational
qualification provided in paragraph 5 thereof
and are selected in the manner provided in
paragraph 6 by the Recruiting Officer in
consultation with Commanding Officer of the
unit concerned. Thus, it appears that the
petitioner being the Sepoy cannot come
within
the
ambit
of
consideration
for
recruitment to the said post.. Therefore, the
said claim cannot be maintained by the
petitioner."

4. The appellant was not satisfied with the
above order, therefore, he moved a review
application which also met the same fate.
Ultimately he filed Special Appeal Nos. 132
of 1997 and 154 of 1997. Both of them have
been dismissed by a Division Bench of this
Court on 1.9.1997. The appellant refused to
leave the field and accept his defeat in the
fight with the respondents. He filed another
Civil Misc.Writ Petition No. 13165 of 1996
before this court and also SLP Nos. 14190 and
14191 of 1998 before the Apex Court. Both
the SLPs were dismissed as withdrawn
primarily on the ground that petitioner was
pursuing his remedy in the writ petition no.
13165 of 1996 pending in the High Court.

5. In the writ petition No. 13165 of 1996
the appellant challenged the validity of the
order dated 14.8.95 discharging him w.e.f.
31.7.96
basically
on
the
ground
that
immediately after the notice of discharge was
served on him, he ,lodged a complaint dated
19.9.95 before the respondent no. 1 for
cancellation of the discharge order, to be
given effect from 31.7.96. The respondent no.
1 ought to have decided the same within the
period of90 days as provided in sub-clause
4(b) of para 361 of the Defence Service
Regulation which he did not and has illegally
discharged
him
from
the
service.
He,
therefore, prayed for issue of writs:
(a)
in the nature of certiorari quashing
the order dated 14th August, 1995 discharging
him in the after noon of 31st July, 1996.
(b)
In
the
nature
of
mandamus
commanding the respondents not to discharge
him and not to give effect of the order dated
14.8.95, prior to a decision on the statutory
complaints dated 19..9.95 pending before the
respondent no.1
(c)
In
the
nature
of
mandamus
commanding the respondents to issue identity
card, pay books kit. etc. to the petitioner and
also to give all consequential service benefits
to him.

6. From the records it appears that the
petitioner was offered to receive his identity
card, pay book kits etc. and also pension
papers from the army Head Quarter which he
refused to collect there from. Seemingly for
this reason the last relief has not been pressed
by the petitioner before the Single Judge. The
petitioner contended only for quashing the
order, discharging him until the complaint
against
his
discharge
pending
before
respondent no. 1 and also that the order
discharging him from service is illegal and not
in
consonance
with
the
Rules
and
Regulations.
2ALL] D.S. Tiwari V Chief of the Army Staff Army Head Quarter & others 9
7. The learned Single Judge on the view
that the petitioner had completed 40 years of
age on 31.7.96 and in no case he could serve
in the Army beyond the age of 40 years and
therefore, of necessity, he was to stand
discharged in the afternoon of 31.7.96. So
also no rule could be cited for counting
intervening period from the date of discharge
in the year 1987 till the date of re-enrolment
towards qualifying service pension and claim
for seniority, dismissed the petition. Not being
satisfied with the judgement and order of the
learned Single Judge the petitioner preferred
this Special appeal

8. It is submitted by the learned counsel
for the appellant that the petitioner was
engaged in regular Army in 1977 and
medically boarded out and discharged from
the services in September, 1987. Thus he
remained engaged in the service for a period
of 10 years. In pursuant to the order of this
Court, he was en-enrolled on 10.4.1993 and
again discharged on 31.7.1996 and thereby
could get re-enrolment in the Army for a
period of three years only. The total period of
his engagement in the colour service was thus
for a period of thirteen years. He contends that
according to the Instruction No. 1/S/76 the
duration of engagement of the persons
enrolled under Army Act is15 years (now 17
years) service with colours and two years in
reserve or till the attainment of age of 40
years which ever is earlier. He further
contends that para 143 of the Defence Service
Regulations
provides
that
duration
or
engagements of the persons re-enrolled for the
full period of combined colour and reserve
service, if has not completed minimum period
of colour service, he will be allowed to
continue his engagement until completion of
15 years' service with colours and two years
in reserve. Thus the petitioner is entitled to
complete seven years' more of his service with
colours and two years reserve service. It is
urged that the learned Single Judge has failed
to appreciate the difference between the
conditions of enrolment and re-enrolment, as
provided in the Instructions and Regulations
cited above and thereby the decision of the
learned Single Judge suffers from inherent
error and illegality and deserves to be set
aside.

9. We have also heard the learned counsel
appearing for the respondents. The Army
instructions 1/S/76 dated January 14, 1996
relates to the duration of the engagement of
the persons enrolled under the Army Act. It
provides that the period of engagement of
Group-1 personnel shall be 15 years service
with the colours 2 years in reserve or till the
attainment of 40 years of age, which ever is
earlier . The para (2) of the instruction
provides that, all the personnel, discharged
from service at their own request before
completion of the colour service referred to
above will also carry reserve liability for a
period of 2 years or till attainment of 40 years
of age in the case of Group-1 categories and
46 years of age in the case of Group-II
categories,
which
ever
is
earlier.
The
appellant since was enrolled in group-1 and
never mustered or promoted in Group-II. So
also petitioner could not have the continuous
engagement. He was discharged in 1987 on
medical ground and subsequently re-enrolled
on 10.4.1993 in view of the provision of para
143
of
Defence
Service
Regulations,
therefore, the instruction no. 1/S/76, as
depicted above, is not applicable and is of no
gain sake for the petitioner.

10. As we have mentioned above that the
petitioner was boarded out and discharged
from the service in 1987 and later on reenrolled in 1993 in view of the provisions of
para 143 of the Regulations, therefore, the
case of the petitioner is squarely governed by
the para143 of the Regulations, The perusal
of this para is, therefore, essential for the
correct decision in appeal.
The para-143 is reproduced below:-
10 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
143 (a)'Ex-Servicemen., who are in receipt
of disability pension, will not be accepted for
re-enrolment in the Army'

(b) Ex-Servicemen, medically boarded out
without any disability pension or those whose
disability pension have been stopped because
other disability having been reassessed below
20% by the Re-Survey Boards, will be
eligible for re-enrolment, either in combatant
or non-combatant (enrolled) capacity in the
Army, provided they are re-medically boarded
and declared fit by the medical authorities. If
such an ex-servicemen applies for reenrolment and claims that he is entirely free
from the disability for which invalided, he
will be medically examined by the Rtg MO
and if he considers him fit, the applicant will
be advised to apply to officer-in -charge,
Records Office concerned, on receipt of the
application, will arrange for his medical
examination at a Military Hospital nearest to
his
place
of residence. The individual
concerned will have to pay all his expenses,
including that on accommodation and journey
to and from the place of medical examination.'

11. The appellant had been re-enrolled
under para 143 of the Army Regulations
hence the terms of para 143 shall be
applicable for counting the period for
pensionary benefit. The para 143 of the Army
Regulations lays down that if the individual is
found
fit
and
re-enrolled
on
regular
engagement, he will be enlisted for the full
period of combined colour and reserve
service, subject to the following conditions-
(I)
if he had not previously completed
the minimum period of colour service after
which he could be transferred to the reserve
he will rejoin the colours and his previous
colour
service
will
count
towards
the
minimum service required for transfer to the
reserve.

(II)
if he had previously completed the
minimum period of colour service required
for transfer to the reserve and is fully trained
and suitable in all other respects, he may be
re-enrolled, provided a vacancy in the reserve
exists, and be immediately transferred to the
reserve.'

12. The para 143 envisages certain
conditions for the enrolment of discharged
army personnel. The condition no.1 is that he
had not completed 15 years' of colour service
and his previous colour service will be
counted
towards
the
minimum
service
required for transfer to reserve. The condition
no. 2 is that in case the personnel had already
completed the colour service, he will be reenrolled and transferred to reserve service
provided vacancy is available in reserve
service. This para does not provide that the
intervening period between the date of
discharge and the date of re-enrolment will be
counted for transfer to reserve service, and
also that that period shall be reckoned for the
purpose of pensionary benefits.

13. In this context, a reference to letter no.
A/32395/VII/Org 2 MP (c)/713-S/A/D (AG)
dated 10 May, 1977 issued in supersession of
the Ministry's letter no. A/18219/V/AG/Org 2
(MP) (c)/3298/D(AG-II), dated 18 Jun, 1971
may also be made. In this letter it is indicated
that President of India was pleased to decide
that in respect of JCOs and OR who are
placed permanently in a medical category
lower than 'A' every effort would be made to
provide alternative employment in their own
trade category commensurate with their
medical categorisation, provided it is in the
public interest to do so. The competent
administrative authority should consider each
case on merits and record a certificate in ;the
individuals
service
documents
that
his
continued retention in service is in the public
interest. In the event of retention, any person
willing to remuster in other Arm or Branch
will not be denied the opportunity of such a
transfer, if it is possible to try him out in the
new Arm/Brach despite his low medical
category. Their pay on remustering will be
fixed as for surplus personnel in accordance
2ALL] D.S. Tiwari V Chief of the Army Staff Army Head Quarter & others 11
with AI 169/59 for JCOs and AI 4/S/55 for
OR as amended.

14. Retention in service in alternative
employment, in terms of para 1 above, will
ordinarily be for a period of 15 years in the
case of JCOs and 10 years for OR. On
completion of the aforesaid period of service,
personnel
will
be
discharged
with
all
convenient speed. However, personnel placed
in permanent low medical category may
continue to be retained beyond the periods
specified above, until they become due for
discharge in the normal manner, subject to
their willingness, provided they can be
employed in sheltered appointments, their
retention is in public interest and their
retention will not exceed the sanctioned
strength of regiment/cops.

15. General provision for retirement is
that
ordinarily
low
medical
category
personnel will be retained in service till
completion of 15 years service with colours in
the case of JCOs and 10 years in the case of
OR
(including
NCOs).
However,
such
personnel may continue to be retained in
service beyond the above period until they
become due for discharge in the normal
manner subject to their willingness and the
fulfilment of the stipulation laid as above. The
para 3 of the letter referred to above consist a
condition that all personnel retained in service
in terms of para 2 above will under all
circumstances, be discharged on completion
of their engagement periods/retiring service
limits. For this purpose, NCOs and JCOs will
be treated as under -
(a) NCOs will be discharged on
completion of the retiring service limits
appropriate to their ranks as opposed to the
extended limits laid down in AO13/77.
However,
their
retention
beyond
the
contractual period of engagement will be
regulated under the provisions of paras 144 to
147 of Regulations for the Army 1962.
(b) JCOs
will
be
discharged
on
completion of the normal retiring service
limits as opposed to the extended limits laid
down in AO 13/77.

16. The appellant admittedly has been reenrolled in evidence of the Courts order on
the terms and conditions given in the letter
referred to above and as provided in para 143
of the regulation. In terms of the Government
of India, Ministry of Defence letter no.
A/37/395/A/2 (MP) (c) 713-S/A/D dated 10
May, 1977, the personnel with permanent low
medical category will be retained in service
till the completion of 15 years in the case of
JCOs and 10 years in the case of OR. They
may however be allowed to continue in
service beyond the above period until they
became due for discharge in normal manner.
The appellant before being discharged in
normal manner was OR, therefore, he could
have been retained in service only for a period
of 10 years and could in all circumstances be
discharged on completion of his retiring
service limit. However extended limit of
discharge of such personnel as laid down in
AO13 of 1977 shall not be allowed to be
availed. Besides the above, regularisation and
terms and conditions laid down by the
instructions issued time to time, no other
Rule, Regulation or the Instruction has been
cited and referred which provides that even
after completion of the retiring age limit the
re-enrolled personnel may be retained with a
view to complete the period of service in
colours and service in reserve. There is
nothing in the Instruction No. 1/S/76 or in
para-143 of the Regulations or in the letter
no.A/32395/VII/Org-2 MP (c) 713 S/A/D
(AG) dated 10.5.1977 to indicate that the
intervening period between the date of
discharge and re-enrolment shall be counted
for reckoning the pensionary benefits.

17. It is not disputed that complaint filed
by the appellant before respondent no. 1 was
not disposed of prior to his discharge from
service. However, the contention of the
appellant's counsel that the respondent no.1
could not discharge the petitioner until the
12 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
disposal of his complaint is without substance
for two reasons, first that there is no
regulation dealing with such situation and
providing that the Army personnel shall not
be discharged before disposal of a complaint
if it is so made, second that the confirmation
of the order dated 14,.8.1995 and discharge of
the appellant amounts to an automatic
rejection of his complaint.

18. For the above reasons, we are of the
definite opinion that the learned Single Judge
committed no error in dismissing the writ
petition and refusing to grant relief as prayed
by the appellant. The appeal is without merit
and deserves to be dismissed.
It is accordingly dismissed.
----------

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By the Court

1. Heard Sri Sudhanshu Dhulia learned
counsel for the petitioner and Sri B.D.Shukla
learned counsel for the respondent no. 1 as
well as learned standing counsel.

2.
The
petitioner
was
lecturer
in
Mathematics in Kumaon Engineering College,
Dwarhat, District Almora. He submitted his
resignation dated 6.9.9.3 vide Annexure-8 to
the writ petition, but he has alleged in
paragraph 17 of the writ petition that he
withdrew that resignation by Registered letter
dated 10.9.93 Annexure-9 to the writ petition.
It has been further alleged in paragraph 27 of
the writ petition that the resignation was
accepted on 17.1.94. The allegation in
paragraph 17 of the writ petition that the
petitioner has withdrawn his resignation letter
dated 6.9.93 by his subsequent letter dated
10.9.93 is not denied. In paragraph 16 to the
counter affidavit all that is stated is that
paragraphs 17 and 18 of the writ petition are
matters of record and hence need no reply.
Thus the short submission of the learned
counsel for the petitioner is that the petitioner
had withdrawn his resignation before it was
accepted.

3. Learned counsel for the petitioner has
shown
us
the
Model
Bye
Laws
for
Engineering College/Institutes of U.P. In Bye
Law No. 3 of the same it is provided as
follows :-

"3. APPOINTMENTS :

(1) All appointments to posts under the
College/Institute
shall
be
made: