# RAM PAL CHATURVEDI v. STATE OF RAJASTHAN & ORS

- **Citation:** [1970] 2 S.C.R. 559
- **Court:** Supreme Court of India
- **Decided:** 1969-09-24
- **Case number:** Civil Appeals Nos. 1818 to 1820 of 1968
- **Bench:** J. M. Shelat, C. A. Vaidialingam, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-pal-chaturvedi-v-state-of-rajasthan-ors-4866
- **Pages:** 7

## Headnote

University of Raiast/u;n-Medical Colleges-Appointment of Princi·
pal-Teaching qualification laid down in Ordinance No. 65 made by
Senate of University under powers given by University of Rajputana Act
1946--Such qualifications relaxed retrospectively by proviso to R. 30(4)
of Rajasthan Medical Service (Collegiate Branch) Rules, 1962 maae by
Governor of Rai«sthan under Art. 309 of Constitution of India, 1950Rule 30( 4) or Ordinance 65 which to prevail~rdinance 65 whether a
provision niade under an Act within the meaning of Art, 309-Rule 30(4)
of Collegiate Rules whether mala fide.
The appellant filed writ petitions in the High Court of Rajai.than
challenging the appointment of the Principals of three Medical Colleges
affiliated to the University of Rajasthan on the ground that the per>ons
appointed did not have the teaching experience nacessary for these posts as
laid down in Ordinance No. 65 made by the Senate of the Um"'rsl!y
under the University of Rajputana Act, 1946. The apμointments were
.defended on the.basis of the proviso to sub-r. (4) of R 30 of the Rajasthan
Medical Service (Collegiate Branch) Rules, 1962 made by the Governor
of Rajasthan under Art. 309 of the Constitution. SubJr. (4) was added
to R. 3() of the, Collegiate Branch Rules with retrospective effect during
the pendency of the appellant's writ petitions and provided that two years'
service rendere<l in the speciality would be reckoned as equivalent to one
year'• teaching experience. In view of this sub-rule, the High
Court
dismissed the appellant's wr~t petitions. In app~i.s to this Court by certtficate. it was contended on behalf of the appellants that {i) Ordmanoc
No. 65 must prevail over R. 30(4) in the matter of teaching exnerience
·required; (iil the retrospective amendment of R. 30 by the additien of
· Stib.£. ( 4) was ma/a fide; (iii) the provision in Ordinance 65 as regards·
~teaching experience was mandatory,
HELD : Dismissing the appeals,
(i) The contention that the proviso to sub-r. ( 4) must yield to the
Ordinance could not be accepted.
The Collegiate Bl .nch Rules havmg
been made pursuant to the power under Art. 309 of the Constitution
must be given full effect subject to the provisions of any Act made by the
appropriate Legislature regulating the recruitment and condicions of service
of penont appointed to the Rajas than Medical Service (Collegiate Branch) .
:Such Act need not specifically deal with the State MeJical Service but it
must be an Act as contemplated by Art. 309 by or ·under which provis10n
is made regulating the recruitment and conditions of service taking withm
iits :fohl the said Medical services, [564 0-E]
Ol'dinance 65 made under the University of Rajputana Act and !1e•li.ng
inter alia with "emoluments and conditions
of service
of U1uvcrs1ty
teachers" was not a provision under an Act regulating the recruitment and
conditions of service of persons appointed t'? R.ajasthan Medi~al S.erv1~
as contemplated by Art. 309 of the. Const1"!t1on.
The. Um,·ersity. ~·
Rajputana Act falls under Entry 11 List II which deal$ with the •ub1e..:t
560
SUPREME COURT REPORTS
(1970]2 S.C.R.
'education including universities' and not under entry 41 List II dealing
\Vith 'State Public services'.
The field of operation of the Ordinance iJ
restricted to the question of affiliation of the Colleges concerned ~vith the
Ra_iasthan University.
If there -is any violation of a provision of the
Ordinance, then that may appropriately be taken into
account by
the
Rajasthan University for the purpose of withdrawing or refusing to con ..
tmue affiliation of the colleges in question.
No such action had been
taken by the University in the present case. The persons appointed could
not be said to be holding their posts without authority~ of law. TI1e appellant had no right to challenge their appointments. [564 G, 565 Dl
(ii) The plea of 1nala fide was unsustainable.
There was noU.:ing to
shovl that r. 30( 4) was made for a collateral purpose in coloufabie exercise of

## Text

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RAM PAL CHATURVEDI
v.
STATE OF RAJASTHAN & ORS.
September 24, 1969
[J. M. SHELAT, C. A. VAIDIALINGAM AND I. D. DUA, JJ.]
University of Raiast/u;n-Medical Colleges-Appointment of Princi·
pal-Teaching qualification laid down in Ordinance No. 65 made by
Senate of University under powers given by University of Rajputana Act
1946--Such qualifications relaxed retrospectively by proviso to R. 30(4)
of Rajasthan Medical Service (Collegiate Branch) Rules, 1962 maae by
Governor of Rai«sthan under Art. 309 of Constitution of India, 1950Rule 30( 4) or Ordinance 65 which to prevail~rdinance 65 whether a
provision niade under an Act within the meaning of Art, 309-Rule 30(4)
of Collegiate Rules whether mala fide.
The appellant filed writ petitions in the High Court of Rajai.than
challenging the appointment of the Principals of three Medical Colleges
affiliated to the University of Rajasthan on the ground that the per>ons
appointed did not have the teaching experience nacessary for these posts as
laid down in Ordinance No. 65 made by the Senate of the Um"'rsl!y
under the University of Rajputana Act, 1946. The apμointments were
.defended on the.basis of the proviso to sub-r. (4) of R 30 of the Rajasthan
Medical Service (Collegiate Branch) Rules, 1962 made by the Governor
of Rajasthan under Art. 309 of the Constitution. SubJr. (4) was added
to R. 3() of the, Collegiate Branch Rules with retrospective effect during
the pendency of the appellant's writ petitions and provided that two years'
service rendere<l in the speciality would be reckoned as equivalent to one
year'• teaching experience. In view of this sub-rule, the High
Court
dismissed the appellant's wr~t petitions. In app~i.s to this Court by certtficate. it was contended on behalf of the appellants that {i) Ordmanoc
No. 65 must prevail over R. 30(4) in the matter of teaching exnerience
·required; (iil the retrospective amendment of R. 30 by the additien of
· Stib.£. ( 4) was ma/a fide; (iii) the provision in Ordinance 65 as regards·
~teaching experience was mandatory,
HELD : Dismissing the appeals,
(i) The contention that the proviso to sub-r. ( 4) must yield to the
Ordinance could not be accepted.
The Collegiate Bl .nch Rules havmg
been made pursuant to the power under Art. 309 of the Constitution
must be given full effect subject to the provisions of any Act made by the
appropriate Legislature regulating the recruitment and condicions of service
of penont appointed to the Rajas than Medical Service (Collegiate Branch) .
:Such Act need not specifically deal with the State MeJical Service but it
must be an Act as contemplated by Art. 309 by or ·under which provis10n
is made regulating the recruitment and conditions of service taking withm
iits :fohl the said Medical services, [564 0-E]
Ol'dinance 65 made under the University of Rajputana Act and !1e•li.ng
inter alia with "emoluments and conditions
of service
of U1uvcrs1ty
teachers" was not a provision under an Act regulating the recruitment and
conditions of service of persons appointed t'? R.ajasthan Medi~al S.erv1~
as contemplated by Art. 309 of the. Const1"!t1on.
The. Um,·ersity. ~·
Rajputana Act falls under Entry 11 List II which deal$ with the •ub1e..:t
560
SUPREME COURT REPORTS
(1970]2 S.C.R.
'education including universities' and not under entry 41 List II dealing
\Vith 'State Public services'.
The field of operation of the Ordinance iJ
restricted to the question of affiliation of the Colleges concerned ~vith the
Ra_iasthan University.
If there -is any violation of a provision of the
Ordinance, then that may appropriately be taken into
account by
the
Rajasthan University for the purpose of withdrawing or refusing to con ..
tmue affiliation of the colleges in question.
No such action had been
taken by the University in the present case. The persons appointed could
not be said to be holding their posts without authority~ of law. TI1e appellant had no right to challenge their appointments. [564 G, 565 Dl
(ii) The plea of 1nala fide was unsustainable.
There was noU.:ing to
shovl that r. 30( 4) was made for a collateral purpose in coloufabie exercise of the rule making oower. [565 Fl
B
fin view of the above findings no opinion was expressed on the question
C:
whether the powers of Ordinance No. 65 were mandatory].
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1818
to 1820 of 1968.
Appeals from the judgm~nt and order dated January 22, 1968
of the Rajasthan Higa Court in D.B. Civil Misc. Writ Nos. 599
of 1966, 100 and 94 of 1967 respectively.
H. R. Gokhale, D. P. Gupta and B. R. Agarwa[a,-for the
appeilants (in all the appeals).
G. C. Kasliwal, Advocate-General, Rajasthan, Vijay Krishna
Makhija, I. M. Bhardwaj and K. B. Mehta, for respondents Nos.
1 and 3 (in all the appeals).
K. B. Mehta, for respondents Nos. 2 and 4 (in all the appeals).
The Judgment of the Court was delivered by
Dua J. These three appeals (Civil Appeals Nos. 1818-1819
and 1820 of 1968) with certificate of fitness presented by Dr.
Ram Pal Chaturvedi are directed against a common judgment of
the Rajasthan High Court and as they raise common questions,
th.~y are bein.g disposed of by one judgment. Civil Appeal
No. 1818 of 1968 is concerned with the challenge to the appointment of Dr. D. G. Ojha as Principal of Sardar ·.Patel Medical
Coiiege, Bikaner.
He was appointed a Professor of Surgery and
Officiating Principal of the said College on March 2, 1964. At
the time of his appointment, he was officiating as
Director of
. Medical and Health Services, Rajasthan at Jaipur. Civil Appeal
No. 1819 of 1968 is concerned with the challenge to the appointment of Dr. P. D. Mathur on July 13, 1965 as Professor of Surgery and Officiating Principal of Rabindra Nath Tagore Medical
College, Udaipur. This order of appointment was subsequently
superseded and Dr. Mathur was appointed as Professor of Surgery
ai1a Principal of Rabindra Nath Tagore Medical College, UdaiD
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pur with effect from the date of his taking over charge. It may be
pointed out that Dr. Mathur's appointment as a Professor of Surgery was not challenged either in the High Court or before us and
his appointment as Principal alone was assailed in this Court.
Civil Appeai No. 1820 is concerned with the challenge to the
appointment of Dr. Rishi dated July 28,
1966 as Principal of
Medical College, Jodhpur. The appointment was made on a
purely temporary and ad hoc basis till further ordersc- On December 31, 1966, this order was partially modified in so far as Dr.
Rishi's remuneration is concerned, but his appointment as Professor of Surgery and Principal of Medical College was re-affirmed
to be on a purely temporary and ad hoc basis. The challenge to
these three appointments by means of writ petitions failed in the
Rajasthan High Court and the present appeals are directed against
the common order of that Court. In the High Court, it was common ground between the parties that Dr. Ojha, Dr. Rishi and Dr.
Mathur did possess academic qualifications prescribed
by
the
University Ordinance and it was also not disputed there that these
respondents had acquired the qualifications prescribed by Rule
30 ( 4) of the Rajas than Medical Service
(Collegiate Branch)
Rules, 1962 (hereafter called the Collegiate Branch Rules). The
High Court made the following observations in the impugned
order:-
"We would, however, observe that Rule 30( 4) empowers the State Government to make only a temporary
or officiating appointment and the appointments of Dr.
Ojha, and Dr. Rishi will be deemed to be temporary or
officiating even though these words may not have been
used in the orders of their appointments as Professors of
.Surgery. Learned Advocate General has also conceded
that the Government cannot make permanent appointments under R. 30( 4) and the omission of the words
'temporary' or 'officiating' in the orders was by mistake.
It is, therefore, not necessary to pursue the matter any
further as these appointments will be considered only as
temporary or officiating." ·
These observations deserve to be borne in mind while dealing
with the present appeals. The High Court further took the view
that the qualifications relating to teaching experience were directory and not mandaiory and in view of the fact that the University
was not objecting to the impugned appointments, that Court did
not consider it proper, in its judicial discretion, to interfere in proceedings for quo-warrantJ at the instance of the appellant. In
this connection, it was observed that the breach of the relevant
Ordinance No. 65 could have afforded a ground for the University
to withdraw affiliation of the Colleges concerned, but it was not
open to the appellani to found his claim on this grievance.
562
SUPREME COURT REPORTS
[1970] 2 s.c.R.
In this Court, the question raised principally centres round the
validity and effect of the proviso to sub-rule ( 4) of Rule 30 contained in Part VIII of the Collegiate Branch Rules.
These rules
were made by the Governor of Rajasthan under Article 309 of the
Constitution of India and were. duly published in the Rajasthan
Gazette (Extraordinary) dated November 5, 1962 and came into
force witll effect from the date of their publication.
The argument
canvassed before us was that these rules could not override the
provisions of Ordinance No. 65 made under the Universi•y of
Rajputana Act of 1946. This Ordinance lays down the minimum
qualifications for teachers of various stages of University Education
in the affiliated Colleges.
Part VIII deals with the Faculty of
Medicine etc., and according to paragraph (A) (3), teachers in
Medical Colleges for M.B.,B.S. and Post-graduate Courses must
possess th.~ special academic qualifications and teaching experience
prescribed therein.
The requisite qualification by way of teaching experience prescribed for Professors/ Additional Professors/
Associate Professors in Surgery is, to reproduce the language of
the Ordinance, "at least five years as Assistant Professor or Reader
or Lecturer in a Medical College." The minimum qualifications
for Principals of affiliated Colleges in the Faculty of Medicine etc.,
are prescribed in Part X(B) (3) and they read as under :
"Master's Degree or equivalent Post-Graduate qualification o>: a higher one in one of the branches in which
the College is affiliated with a minimum professional
experience of 20 years, of which at least 10 years must
have been spent as a teacher of Post-Graduate Classes
and 5 years in administrative work."
We may now turn to the Collegiate Branch Rules and examine
the appellant's argument.
These Rules framed under Art. 309
of the Constitution for regulating the recruitment to posts in, and
the conditions of service of persons appointed to, the Rajastban
Medical Service ( ColJ.egiate Branch) directly govern the impugned
appoiniments and their binding
character is beyond
question.
Rule 6 providing for the composition and strength of the Rajasthan
Medical Service (Collegiate Branch) lays down that the Service
shall consist of two wings viz., Clinical and non-Clinical and the
right of promotion shall be confined to each wing.
The nature of
conditions included in each wing are as specified in column 2 of
the Schedule attached to the Rules.
Procedure for promotion is
dealt with in Part V of these Rules.
Rule 23 provides that the
persons enumerated in column 4 of the Schedule shall be eligible,
on the basis of seniority-cum-merit, for promotion to pOSts specified in column 2 subject to their possessing' minimum qualifications
and experience as laid down by the Rajasthan University for the
teaching staff in Medical Colleges. In selecting candidates for
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promotion, regard is to be had to six factors mentioned in sub-rule
(2)
which
include,
inter alia
academic
qualifications and
experience.
In the Schedule in the non-Clinical wing, the selection posts consisting of Professors and Additional Professors are
to be filled 100 per cent by promotion from Readers.
There is
nothing specific in this Sciledule in regard to the posts of Principals
and these rules do not provide specifically for their appointments.
Rule 30, on the basis of which arguments were principally addressed in these three appeals, may now be reproduced in extenso :-
"30. Temporary or officiating appointments.
( 1)
A temporary vacancy in a Senior or Selection post, may
l:>e filled by Government by appointing
thereto in an
officiating capacity an officer whose name is included in
the list prepared under Rule 24 ( 3) or in the lists under
Sub-Rules (2) and (3) of Rule 23:
Provided that till the preparation of the first list or
in case the list is exhausted, a vacant post may be filled
by Government by appointing thereto a member of the
Service eligiple for appointment to the post by promotion or by
appointing
thereto
temporarily
person
eligible for
appointment by direct recruitment to the
service under the provisions of these Rules.
(2) A temporary vacancy in the Junior posts may
be filled by Government by appointing thereto temporarily a person eligible for appointment by direct recruitment to the service under the provisions of these Rules.
(3) No appointment made
under Sub-Rule (1)
and ( 2) above, shall be continued beyond a period of
six months without referring it to the Commission for
their concurrence and shall be terminated immediately
on their refusal to concur.
( 4) Notwithstanding
anything
contained in Subrules (1) or ( 3) above or any other provisions in the
rules, any selection or senior posts falling vacant mav be
filled in te1!1porarily by
~ppointment of any Speci"lilist
(Jr. or Semor) m the service of the State, who is a postgraduate. and has teaching experience and practice in
the. spe:ialitv. for such periods as are required by the
Umversity Ordinance for the time being in force on the
date of such appointmentProvided that :-
Two years of service rendered
in
the
speciality
shall be reckoned as equivalent to one year teaching experience gain.~d in the Speciality."
--
564
SUPREME COURT REPORTS
(1970] 2 SC.R.
Sub-rule ( 4), it may be pointed out, was added on August
22, 1966 with retrospective effect during the pendency of the writ
petitions in the High Court, with the result that the writ petitions
were a!lowed to be amended so as to include a challenge to the
validity of this amendment. The amendment was assailed on the
grounds of ma/a {ides and unconstitutional di;crimination. The
validity of the -retrospective operation of this sub-rule was not
questioned bdore us by Shri Gokhale, though a lukewarm challenge was suggested before the close of the arguments on the
grounds of mala {ides. It may be noted that the requirement of
teaching experience as laid down in the University Ordinance also
finds place in sub-rule ( 4) of Rule 30 as added in 1966 and it is
only the proviso which has the effect of modifying to some extent
this condition.
The narrow question
requiring
consideration
therefore is whether the proviso, according to which two years of
service rendered in the speciality is to be reckoned as equivalent
to one year's teaching exp.erience gained in the speciality, must,
as contended on behalf of the appellant, yield to the requirement in
the Ordinance which
prescribes the minimum qualifi 0 ation of
teaching
experience and,
therefore, must be ignored.
V'ie are
unable to uphold the contention.
The Coilegiate Branch Rules
having been made pursuant to the power conferred by Art.
309
of the Constitution, they must be giv~n full effect subject to the
provisions of any Act made by the appropriate Legislature regulating the recruitment and conditions of service of persons appointed to the Rajasthan Medical Service (Coilegiate Branch).
Such
Act need not specifically den! with the aforesaid Medical Services
but it must be an Act as contemplated bv Art. 309 by or under
which p:ovision is made regulating the recruitment and conditions
of service taking within its fold the said Medical Services.
This takes us to the question of scope and effect of Ordinance
No. 65. The University of Rajputana Act of 1946 (hereafter called
the Act) under which Ordinance No. 65 was made was enacted to
incorporate the University of Rajputana.
The name of the University was changed in 1956 to the University of Rajasthan.
The
Syndicate of this University constituted under s.21 of the Act is
empowered under s.29 read with s.30 to make ordinances, consistent with the Act and statutes, to provide for the matters listed in
s.29.
These matters include in clause VI "emoluments and conditions of service of University teachers."
But on this basis alone
it is not easy for us to hold that Ordinance No. 65 is a provision
under an Act, regulatin.g the recruitment and conditions of service
of persons appointed t0 Rajasthan Medical Service, as contemplated by Art. 309 of the Constitution.
Shri Gokhale referred us to
entry 41 in List II of 7th Schedule of the Constitution which deals
with the subject, inter a/ia, of "State Public Services" and submitted
that the Act fell within this entry and therefore came within the
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purview of Art. 309.
We are not impressed by this submission.
In our opinion, on a consideration of the pith and substance of the
Act and on a comparison of the language med in
the entries
Nos. 11 and 49 of List II, the field of legislation of the Act moreappropriately falls under entry No. 11 which deal& with the subject
of "education including university."
The appointments of Dr.
Ojha, Dr. Mathur and Dr. Rishi thus seem to us to be fully justified by the Collegiate Branch Rules and their appointments cannot be held to be invalid by reason merely of non-compliance with
the provisions of Ordinance No. 65 in regard to the condition of
teaching experience.
The fielci of operation of this Ordinance
appears to u1 to be restricted to the question of affiliation of the·
Colleges concerned with the Rajasthan
University.
It is noteworthy th1t the University has not
thought fit to object to these
appointments. If there is violation of a provision of this Ordi-·
nance then that may appropriately be taken into account by the
Raja• than Univesity for the purpose of withdrawing or refusing
to ccn:inue affiliation of the colleges in question.
But clearly that
would not render the impugned appointments null and void;
a forti<iri that cannot confer any right on Dr. Ram Pal Chaturvedi to approach the High Court by means of petition for writ of
Quo-warranto to challenge the appointments of these three persons.
We are
unable to hold that these persons are usurpers and are·
holding the posts of Principals without the sanction of authority.
On th.e view that we have taken on the scope and effect of the·
Colle~iate Branch Rules it is unnecessary to consider the argument
strr,,ir'v pressed by Shri Gokhale that the provisions of Ordinance
No. (,:; are mandatorv and we refrain from expressing any opinion
either way.
The appeli rnt's challenge on the ground of mala {ides is also
unsustainable.
Except for the bald assertion at the Bar nothing
convincing has been said to persuade us to hold that r. 30( 4)
added in 1966 was made for a collateral
purpose in colourable
exercise of the rule making power.
Th.~ appeals must, therefore, fail and are dismissed with costs.
One ~:et of costs.
R.K.P.S.
Appeals dismissed.