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PETITIONER:

DR. MAHAK SINGH DR. RAJVIR SINGH

Vs.

RESPONDENT:

CHANCELLOR, CH.CHARAN SINGHUNIVERSITY, MEERUT AND OTHERS

DATE OF JUDGMENT: 31/10/1996

BENCH:

N.P. SINGH, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:

WITH

CIVIL APPEAL NO 4616 OF 1996

J U D G M E N T

MAJMUDAR,J

These three appeal arise out of a common judgment

rendered by a Division Bench of the High Court of Judicature

at Allahabad in different writ petitions made by the common

appellant Dr. Mahak Singh in Civil Appeal Nos, 4613-4614 of

1996 and by one of the writ petitioners Dr. Rajvir Singh,

appellant in companion Civil Appeal No.4616 of 1996. These

appeals project a common controversy of a triangular nature

amongst three contestant-teachers attached to Janata Vaidic

(Post Graduate) College. Baraut in Uttar Pradesh which is a

degree collage affiliated to the Meerut University. The

contestants are Dr. Mahak Singh on the one hand who is the

appellant in first two appeals and respondent No.3 in these

appeals Dr. S.P. Singh as well as respondent NO.5 Dr. Rajvir

Singh in these two appeals who in his turn appellant in the

companion Civil Appeal No.4616 of 1996. All the three of

them claimed to be entitled to work as incharge-Principal of

the said Degree Collage on the ground that each one of them

was the senior most teacher. The High Court in its common

impugned judgement has taken the view that out of the three

contestants, common respondent No.3 in these appeals ,

namely, Dr. S.P. Singh is entitled to work as Acting

Principal till regular Principal is appointed in the college

by following the due procedure or law. This conclusion to

which the High Court reached is on the basis that amongst

the three contestants he is the senior most. This is

seriously brought in challenge by the common appellant in

the first two appeals Dr. Mahak Singh. His learned counsel

Shri Prashant Bhushan submitted that Dr. Mahak Singh is the

senior most lecturer and hence entitled to be considered for

being appointed as Acting Principal while learned counsel

for respondent No.5 submitted in support of his companion

appeal that Dr. Rajvir Singh is entitled to the said post.

Learned counsel for common respondent No, .3 on the other

hand submitted that the High Court has rightly taken the

view that respondent No.3 is the most eligible candidate for

the purpose.

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In order to resolve this triangular controversy a few

relevant facts leading to these proceedings are required to

be noted at the outset. Earlier the college in which these

three contestants are working as senior lecturers was

affiliated to Agra University under the Agra University Act,

1926. The said college was, the therefore, governed by the

provisions of the said act and the statute framed thereunder

form the very beginning till 1.7.1965. The Kanpur and

Meerut University Act was enforced with effect from

1.7.1985. As a result thereof the said college got

affiliated to Meerut University. Since no statute of Agra

University. Consequent upon the framing of the Statutes of

Meerut University 26.9.68, the college was thereafter

governed by the said Statutes, The senior most of teacher

of affiliated colleges was governed by Statute No.11.34 of

that University. U.P. State Universities Act, 1973 came in

to force with effect from 2.9.73. Since no statutes of the

Meerut University continued to govern the service conditions

of the teachers of affiliated college. First Statutes of

the Meerut University were framed under U.P. State

Universities Act, 1973 which came in to force from 1.5.77.

For the purpose of determining the seniority of teachers

Chapter XVIII of these statutes became applicable with

effect form 1.5.77. It is not in dispute that the rate

these statutes to which we will make a detailed reference at

an appropriate stage.

The service Bio-Data of the aforesaid three contestants

run as under:

The appellant in Civil Appeal Nos.4613-4614 of 1996,

Dr. Mahak Singh was ap[pointed on 9.7.59 as lecturer in

Agronomy in the grade of Rs.225-450 for teaching degree

classes in the aforesaid college. On 6.11.1963 he was

appointed as Head of the Department (Post Graduate College)

in the grade of Rs.350-800. ON 1.1.86 he was designated as

Senior Lecturer in the grade of Rs.3700-5700.

Dr. S.P.Singh, common respondent No.3 was appointed on

9.7.59 as lecturer in the same college for teaching post

graduate classes in the subject of Economics in the grade of

Rs.250-500. On 6.11.63 he was designated as Head of the

Department, Post Graduate Classes in the grade of Rs. 350-

800. On 1.1.1986 he was granted the grade of senior

lecturer i.e. Rs.3700-5700.

Dr. Rajvir Singh, respondent No.5 in the first two

appeals and appellant in the companion appeal No.4616 of

1996 was appointed as post graduate lecturer in the

aforesaid college on 9.7.61 in the grade of Rs.250-500 in

D.A.V. College, Muzaffarnagar in the subject of Geology. On

25th August, 1964 he was appointed and designated as Head of

the Department Post Graduate Classes in the grade of Rs.

350-800 in the college to which the other two contestants

belonged. It appears that his service tenure in the same

college underwent rough weather. Even though he was

designated as Head of the Department on 9.7.66 in the grade

of Rs.700-1100, subsequently his services were terminated on

7.5.69 and said termination order was set aside on 31.1.73

and thereafter he joined as lecturer in the same college in

the grade of Rs.700-1600. On 1.1.1986 he was granted grade

of Rs. 2200-4000. The said grade was that of a lecturer.

He was designated as a senior lecturer in the grade of Rs.

3700-5700 with effect from 31.1.1986.

The aforesaid Bio-Data of the three contestants is well

borne out from the record of the case and has been treated

by the High Court to be well established. However, learned

counsel for respondent No. 5 in these two appeals Dr. Rajvir

Singh vehemently contended that his client should be

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considered to have been appointed as a senior lecturer in

this very college not form 31.1.1986 but from 1.1.86, he

should have made such a grievance at the relevant time.

Years rolled by still he never made a grievance about the

same and accepted the decision that the was to be designated

as senior lecturer only from 31.1.86. Subsequently,

therefore when vacancy of Principal arose in, 1993 when the

then Principal Dr. P.S. Malik, retired and when the question

of appointed of an Acting Principal arose it was too late

Dr. Rajvir Singh to contend after seven years that he should

have been treated to be a senior lecturer form 1.1.86 and

not from 31.1.86. We must, therefore proceed on the basis

that appellant Dr. Mahak Singh and respondent No.3 were

designated as senior lecturer from 1.1.86 while respondent

No.5 Dr. Rajvir Singh was rightly designated as the senior

lecturer from 31.1.86. In the background of this service

bio-data of all the three contestants, the short question

which arises for our consideration has to be resolved. The

relevant stature for resolving this controversy is 13.20.

It is not in dispute the parties that the said statute held

the field when the vacancy of the Principal of the college

occurred on 30th June, 1993. The said stature reads as

under:

13.20:- When the office of the

Principal of an affiliated college

falls vacant, the Management may

appoint any teacher to officiate as

Principal for a period of three

months or until the appointment of

a regular Principal, whichever is

earlier. If on or before the

expiry of the period of three

months, any regular Principal does

not appointed, or such a Principal

does not assume office, the senior-

most teacher in the college shall

officiate as Principal of such

college until a regular Principal

is appointed.

It is not in dispute between the parties that the

office of the Principal of college to which all the three

contestants belonged fell vacant form 1st July, 1993 and on

the expiry of three months form that date no regular

Principal came to be appointed. It is pertinent to note

that even till date no regular Principal has become

available to take over the charge of the college as

Principal. We are told that the relevant recruiting agency

for the said purpose has already selected a candidate for

the said post who is other than any of contestants before

us. But even his appointment is held up because of a

pending litigation in Allahabad High Court. Be that as it

may a situation has emerged and has continued to operate qua

the college in question, wherein Statute 13.20 has continued

to operate all through out till date. It is, therefore,

necessary to find out as to who is the senior-most teacher

in this co amongst the three contestants who can legally

officiate as Principal of the college which is an affiliated

college. Stature 11.34 in Part V of the statute with

seniority of teacher in affiliated colleges would become

relevant for exercise, it reads as under:

11.34:- Subject to the provision of

this Statute the seniority of

teachers in a particular college

shall be determined by the length

of service in that college in the

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same cadre and by the same grade.

For applicability of this statute it has to be found as

to who was the senior-most teacher in his college belonging

to the same cadre and having the same grade and having the

same grade of pay when the vacancy of Principal arose on the

expiry of three months from 1st July, 1993 i.e. from 1st

October .1993. It is sen form the aforesaid service bio-

data of all the three contestants that all of than were

working in the grade or senior lecturers and were drawing

the same emoluments in the grade of Rs.3700-5700 on

1.10.1993. Then the next question arises as to who was the

senior-most amongst them in cadre of senior lecturers in

this college. So far as contestant Dr. Rajvir Singh is

concerned the answer is obvious. He was designated as

senior lecturer form 31.1.86 as compared to the common

appellant Dr, Mahak Singh and the common respondent No.3 Dr,

S.P. Singh. He naturally, therefore, gets weeded out by

these two seniors of his in the cadre of senior lecture as

both of them were senior to him by atleast 30 days on the

Principal of continues officiation as senior lecture . That

removes Dr. Rajvir Singh from the array of contest for the

post of Acting Principal on the combined operation of

Statutes 13.20 and 11.34. However, strong reliance was

placed by learned counsel for Dr. Rajvir Singh on Statute

13.05 read with statute 18.16 which read as under:

"18.05:- The following rules shall

be following in determining the

seniority of teachers of the

University-

(a) A Professor shall be deemed

senior to every Reader, and a

Reader shall be deemed senior to

every Lecturer.

18.16:- The provisions of Statutes

18.01, 18.02 18.05 and 18.08 shall

mutatis mutandis apply to the

teachers and Principals of

affiliated colleges as they apply

to the teachers of the University."

On the basis of three statutes it was submitted on

behalf of Dr. Rajvir Singh that even though the relevant

statutes round in Chapter XVIII with seniority of teacher of

University atleast Statute 18.05 would mutatis mutandis

apply to the teachers and principal of affiliated college to

which all the three contestants belonged. to that extent he

is right. However, the question is whether in the college

to which the contents to belonged where the of Principal

occurred, was was there any reader who could rank senior to

a lecturer so that Statute 18.05 could be effectively

pressed in service by Dr. Rajvir Singh. The said question

is to be answered in the negative for the simple reason that

on the date on which the vacancy of Principal occurred, as

aforesaid, Dr. Rajvir Singh had no longer remained a reader

but he was designated as a senior lecturer. IN part he

might have been a reader but it became a matter of history

for him as though he was designated as reader and Head of

the Department on 9.7.66 with passage of two decades by 1986

he became a lecturer from 1.1.86 and became a senior

lecturer only from 31.1.86. Consequently Statute 18.05

cannot be of any assistance to him. This conclusion of ours

will put Dr. Rajvir Singh, appellant in Civil Appeal No.4616

of 1996 out of contest and his appeal would be liable to

fail.

Then remain in the field of contest, the common

appellant Dr. Mahak Singh and the common respondent No.3 Dr.

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S.P. Singh whose claim has found favour with the High Court.

So far as this contest is concerned, it must at once be

stated agreeing with Shri Prashant Bhushan, learned counsel

for the appellant, Dr. Mahak Singh that his client became a

lecturer form 9.7.59 on a regular vacancy while respondent

No.3 who was appointed as lecturer on 9.7.59 was admittedly

unqualified to be appointed as such on regular basis and he

was granted relaxation of educational qualifications only

15th April, 1960 by the Executive Council of the University.

Therefore he can be said to have become a regular lecturer

only from that date. It is well settled that if a person is

appointed irregularly on a post and if he is regularised

later on his initial appointment would be treated as void

and he wi be considered to have been regularly appointed

only from the fate of such regularisation and would be

treated as having entered in service form that date. In

Shitla Prasad Shukla v. State of U.P. and Ors. 1986 (Supp)

SCC 185 in para 9 of the said Report and Bench of two judges

of this Court speaking through M.P. Thakkar. J. had made the

following pertinent observations in this connection:

"There is also one more dimension

of the matter. Though the

appellant was working as a

lecturer, it was not under any

authority of law for there is no

provision which empowers the

college to allow any unqualified

person to teach or to appoint him

as such in anticipation of his

disqualification being removed in

future. Till the exemption was

granted appellant was not even a

teacher in the eye of law though he

was allowed to teach by the

indulgence of the college auth.

The disqualification was removed

only on July 23 1963 when the Board

granted the exemption. How could

he have claimed seniority via-a-vis

respondents 5 and 6 who possessed

the requisite qualification and

became regularly and lawfully

appointed teacher such prior

thereto?

It must, therefore, be held that respondent o. 3 became

a regular lecturer in this college from 16.4.1960 and

Appellant Dr. Mahak Singh on the other hand was a regular

lecturer in this college from 9.7.59 and was, therefore,

senior to him. However we are strictly not concerned with

the initial seniority of these two contestants. We have to

examine a situation that obtained when the vacancy of

Principal arose i.e. on 1.10.1993. On that date the

appellant as well as respondent No.3 were working as senior

lecturers in the same grade from the very same date i.e.

from 1.1.1986. The question therefore arises as to who

between them could be said to be senior so as to be entitled

to be considered for being appointed as Acting Principal as

per Statute 13.20 read within Statute 11.34 as both of them

by that time had equal length of continuous officiation as

senior lecturers and were in the same grade. In this

connection two aspects assume Importance. Firstly between

the two who was senior in the light of the initial entry in

the college as lecturer and secondly who between the two

would be entitled to be considered for the post of Acting

Principal which is a stop-gap arrangement awaiting the duly

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selected Principal. So far as the first aspect is

concerned as we have seen above the appellant was definitely

senior to respondent No.3 as a lecturer. However the more

important question to when the appellant are respondent No.3

were equally placed in the grade of senior lecturers and

were officiating as such form the very same date, who

between them would be entitled to become the Acting

Principal. For answering this question the general bio-data

of both of them apart from their service bio-data would

assure importance especially when we are examining the rival

claims in appeals under Article 136 of the Constitution. So

far as this aspect is concerned for respondent No.3 to the

counter affidavit filed on behalf of respondent No.3 in the

special leave petitions from which these appeals arise. In

paragraph 20 of the said counter, it has been averred that

the credentials of the writ petitioner i.e.(present

appellant) are themselves not impeccable and unimpeachable.

The petitioner (the appellant) has several criminal cases

registered against him in the town of Baraut itself,

including the particulars of which are annexed at Annexure-

C. When we turn to Annexure-C we find the following

particular:

LIST OF CRIMINAL CASES PENDING AGAINST

SHRI MAHAK SINGH IN BARAUT

1. FIR No. 167/82 under section 147/148/149/307/324 IPC

2. FIR No. 185/82 under section 328 IPC

3. FIR No. 282/87 under section 147/148/149/307/302 IPC

4. FIR No. 191/88 under section 147/148/149/307/323/171

IPC

5. FIR No. 196/88 under section 307/34 IPC.

6. Fir No.. 299/80 UNDER SECTION 147/324/323/426 IPC.

Learned counsel for the appellant joined issue on this

aspect and incited our attention to paragraph 8 of the

rejoinder affidavit of the appellant at page 115 of the

paper book which reads as under:

"As regards the respondent's

attempt to show that the petitioner

has several criminal cases pending

against him, this charge of the

respondent is malicious and

misleading. It is pointed out that

the petitioner has been involved in

public life and has been an M.L.A.

to the Legislative Assembly in

1991. the petitioner, therefore,

has various political rivals who

lodged false complaints against the

petitioner. Gut of the six FIRs

mentioned, the petitioner is aware

of only the first five. Out of

these FIRs at item 1,2,4 and 5, the

charges against the petitioner were

found to he false and there is no

proceedings pending in respect of

the same. At No.3 involves a false

complaint against the petitioner

which was made eight years ago.

The case is still pending for more

than eight years though the charge

against the petitioner is totally

baseless and the petitioner is

accused of offence in the village

at a time when the petitioner was

attending a sports function in the

college."

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It becomes, therefore, clear that from year 1980

onwards the appellant was involved in so many criminal cases

in connection with offences under Indian Penal Code. All

the alleged offences were against human body and they ranged

from alleged offences under Sections 324, 326 and 426 and

extending up to offences under Sections 307, 147, 148, 149

and even Section 302 I.P.C. We may take it as submitted by

the learned counsel for the appellant that out of the listed

six cases in Annexure-C to the counter affidavit of

respondent No.3, the appellant was discharged in all the

cases expect one under Section 302 I.P.C. which is still

pending since number of years. On our further enquiry we

were informed by learned counsel for the appellant as well

as respondent No.3 that the criminal case regarding offence

under Section 302 I.P.C. which is at the stage of evidence

before the Sessions Court, the appellant is accused of an

offence of double murder alleged to have been committed by

inflicting gun shots on the deceased. We are not concerned

with the merits of the said controversy as learned counsel

for the appellant contended that it is totally a false case

foisted upon the appellant by his political rivals as he

was an active political worker who subsequently became a

Member of Legislative Assembly. Be that as it may when the

question arises as to who should be the Acting Principal of

the Degree College wherein apart form administrative duties,

the Principal being the head of the institution has to act

as a model for the students, and especially when both the

appellant and respondent No.3 are equally placed and

situated as senior lecturers drawing the same pay scale and

officiating from the very same day, equity would tilt the

balance against the appellant as admittedly he is at present

facing a charge of double murder under Section 302 I.P.C.

When such is the bio-data of the appellant atleast he can

be said to be under a cloud of a serious criminal charge.

Consequently even assuming that both the appellant and

respondent No.3 are otherwise equally situated form the

point of view of seniority as senior lecturers and that the

initial entry as a lecturer makes the appellant senior to

respondent No.3, even then in our view while exercising

jurisdiction in appeal under Article 136, we would be loath

to give any relief to the appellant so as to entitle him to

work as Acting Principal of the Degree College when he is

facing the charge of double murder. We obviously cannot and

do not express any opinion on his culpability but atleast

this involvement and cloud affect his credentials for being

considered as a suitable candidate for the post of acting

Principal of the college wherein students have to be taught

discipline and are to be equipped with knowledge, expertise

and higher values of life so as to make them better

citizens. For acting as the head of the institution,

therefore, in the light of the aforesaid peculiar facts of

the situation, in our view the appellant would not be

entitled to get the balance titled in his favour even

assuming that he was senior to respondent No.3 initially as

a lecturer. We also make it clear that this assessment is

also confined to the limited question as to who would be

considered senior for the purpose of being appointed as

Acting Principal under statute 13.20. Once the High Court

has taken the view that between the appellant and respondent

No.3, respondent No.3 is entitled to be appointed as Acting

Principal under the said statute, and once we find that the

appellant is not entitled to relief at our hands in view of

the peculiar facts and circumstances in which he is placed

as indicated hereinabove, no case is made out by the

appellant for our interference under Article 138 of the

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Constitution of India in the present proceedings.

As a result of the aforesaid discussion Civil Appeals

No.4613-4614 of 1996 filled by the appellant Dr. Mahak Singh

fail and will stand dismissed. Similarly Civil Appeal

No.4616 of 1996 filled by Dr. Rajvir Singh will also stand

dismissed. In the facts and circumstances of the case,

there shall be no order as to costs in all these appeals.