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PETITIONER:

DR. UMA KANT AND ANR.

Vs.

RESPONDENT:

DR. BHIKA LAL JAIN AND ORS.

DATE OF JUDGMENT04/10/1991

BENCH:

KASLIWAL, N.M. (J)

BENCH:

KASLIWAL, N.M. (J)

KANIA, M.H.

FATHIMA BEEVI, M. (J)

CITATION:

1991 AIR 2272 1991 SCR Supl. (1) 415

1992 SCC (1) 105 JT 1991 (4) 75

1991 SCALE (2)769

ACT:

Rajasthan University Teachers and Officers (Selection

for appointment) Act, 1974:

Sections 3(1) & 5(1)--Expression --'Appointment' and 'For

every selection'--Scope of.

Section 6--Appointment of Professor--Selection Commit-

tee--Constitution and procedure--Preparation of 'Selection

List' and 'Reserve List' --Approval by University

Syndicate--Appointment of candidate included in the Selec-

tion List--Superannuation of appointed candidate---Appoint-

ment of candidate recommended in the Reserve List-- Validity

of-- HeM with the appointment of candidate included in the

Selection List, Reserve List does not become

extinct--Appointment of candidate recommended in the Reserve

List hem valid--Purpose of Reserve List explained.

HEADNOTE:

Section 3(1) of the Rajasthan University Teachers and

Officers (Selection for Appointment) Act, 1974 provides that

no teacher in any University in Rajasthan shall be appointed

except on the recommendations of the Selection Committee

constituted under Section 5, and, under Section 3(2) any

appointment made in contravention of Section 3(1) is null

and void. Section 6(4) of the Act provides that the Selec-

tion Committee, while making its recommendations to the

Syndicate, shall prepare a list of candidates selected by it

in order of merit and shall further prepare a Reserve List

in the same order and to the extent of 50% of the vacancies

for the post of teachers or officers.

The University of Rajasthan invited applications for the

post of Professor in the Department of Botany. The Selec-

tion Committee recommended the name of a candidate in its

selection list which was approved by the University Syndi-

cate and the recommended candidate was appointed as Profes-

sor. The appellant's name was included in the Reserve List

which was to remain valid for one year as per the Syndi-

cate's

416

resolution. Subsequent to the retirement of the initially

appointed Professor, the appellant, who was on the reserve

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list, was appointed as Professor. The non selected candi-

dates challenged the appointment of initially appointed

Professor as well as of the appellant and a Single Judge of

the High Court held the Selection Committee's constitution

valid but declared the appellant's appointment illegal on

the ground that once a person selected by the Selection

Committee is appointed, the reserve list gets exhausted and

the person named in the reserve list cannot be appointed

against a future vacancy.

On appeal, the Division Bench of the High Court upheld

the order of the Single Judge by holding that once a person

selected by the Selection Committee joins the reserve list

becomes extinct and if some vacancy is caused thereafter. a

fresh and de nova Selection Committee procedure is to be

started. Against the order of the Division Bench of the High

Court, appeals were flied in this Court.

Allowing the appeals and setting aside the order of the

High Court, this Court,

HELD: 1. A reserve list is always prepared to meet the

contingency of anticipated or future vacancies caused on

account of resignation, retirement, promotion or otherwise.

This is done in view of the fact that it takes a long time

In constituting a fresh Selection Committee which has a

cumbersome procedure and in order to avoid ad hoc appoint-

ments keeping in view the interest of the student community.

[422 F]

2. The High Court committed a clear error in restricting

the scope of reserve list only against the post for which

the selection was made and which according to it could only

be available to the incumbent in the reserve list if the

person recommended in the main list did not join such post.

Thus it was wrong in taking the view that a regular vacancy

of Professor having arisen on the retirement of initially

appointed Professor, again a fresh Selection Committee

should have been constituted and no appointment on such post

could have been made from the reserve list prepared by the

Selection Committee. The interpretation given by the High

Court is not borne out from any of the provisions of Section

3(1), Section 5 or sub-section (4) of Section 6 of the

Rajasthan University Teachers and Officers (Selection for

appointment) Act, 1974. [423 B; 422 C-D]

417

3. Section 5 of the 1974 Act only provides for the

constitution of Selection Committee and the words 'for every

selection' used in sub-section (1) of Section 5 only mean

that in case of every selection of a teacher or of an offi-

cer in University, a Committee would be constituted of the

persons mentioned in sub- section (i) of the said Section 5.

[423-E]

3.1 A reading of Section 5 with Section 6(4) makes it

quite clear that the Selection Committee constituted shall

recommend not only the candidates selected by it in order of

merit but shall further prepare a reserve list to the extent

of 50% of the vacancies and persons kept in the reserve list

will be considered as having been selected for the concerned

post and shall be entitled for appointment if any vacancy is

caused during the validity period of the reserve list. The

suitability of the persons kept in the reserve list is also

adjudged by the Selection Committee which is constituted for

selection of a teacher in the University. Thus no fault can

be found that the incumbent recommended in the reserve list

by the Selection Committee was not selected for the con-

cerned post of teacher. [423 G-H, 424 A-B]

4. In the instant case, the initially appointed Profes-

sor was going to retire after sometime. Therefore, it was

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perfectly valid to select one more person and to keep him in

the reserve list for being appointed on the regular vacancy

which was shortly anticipated on account of retirement of

initially appointed Professor. The Selection Committee

approved and recommended the name of the appellant in the

reserve list finding him suitable for appointment on the

post of Professor. The Syndicate which is the highest execu-

tive body in the University had also approved the appel-

lant's name in the reserve list. Therefore, the selection

and appointment of the appellant is valid. [422 H, 423-A,

422 G, 424 F]

5. It is well settled that in matters relating to educa-

tional institutions, if two interpretations are possible,

the courts would ordinarily be reluctant to accept that

interpretation which would upset and reverse the long course

of action and decision taken by such educational authorities

and would accept the interpretation made by such educational

authorities. [424 E]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4094 &

4095 of 1991.

418

From the Judgment and Order dated 6.3.1991 of the Rajas-

than High Court in D.B. Civil Special Appeal (Writ) Nos. 48

& 50 of 1990.

P.P. Rao, M.K. Ramamurthi, S.K. Singh, Sudhanshu Atreya,

Sushil Kumar Jain, Ms. Bina Gupta, Manoj Swarup, Miss.

Lalita Kohli, R.F. Nariman and Mrs. Binu Tamta for the

appearing parties.

The Judgment of the Court was delivered by

KASLIWAL, J. Special Leaves granted.

Briefly stated the facts are that University of Rajas-

than invited applications for the post of Professor in the

department of Botany. The Selection Committee constituted

under Sec. 5 of the Rajasthan University Teachers and Offi-

cers (Selection for appointment) Act of 1974 (herein after

referred to as the 'Act of 1974') held interviews on 20th

June, 1989 and selected Dr. G.S. Nathawat for the post of

Professor in Botany. The name of Dr. Urea Kant was mentioned

in the reserve list by the Selection Committee. The syndi-

cate of the University approved the list and appointed Dr.

Nathawat on the said post. Dr. Nathawat retired on 30th

September, 1989 and Dr. Urea Kant who was already selected

and kept in the reserve list was appointed as Professor in

the department of Botany. Dr. Bhikalal, Dr. Shiv Sharma, Dr.

Sudhakar Mishra and Dr. T.N. Bhardwaj who were not selected

filed a writ petition in the High Court initially challeng-

ing the appointment of Dr. Nathawat on the ground that the

Selection Committee was not constituted in accordance with

law and objection was also raised that once a selected

person joins the post, the reserve list exhausted itself.

Dr. Bhikalal and others subsequently impleaded Dr. Uma Kant

also as one of the respondents in the writ petition. The

respondents, in their reply to the writ petition, submitted

that the selection committee was properly constituted. The

appointment of Dr. Uma Kant was rightly made as the life of

the reserve list was initially for six months and subse-

quently extended to one year by a resolution of the Syndi-

cate dated 3.12.1983. Learned Single Judge held that the

constitution of the Selection Committee was valid but as

regards the appointment of Dr. Urea Kant from the reserve

list it was held that once a person selected by the Selec-

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tion Committee had been appointed the reserve list stood

exhausted and the person named in the reserve list could not

be appointed against a future vacancy. The appointment of

Dr. Urea Kant was held illegal and it was directed that Dr.

Uma Kant be removed from the said post of Professor of

Botany. Both Dr. Uma Kant as well as the University of

Rajasthan tiled special appeal before/he Division Bench. The

Division Bench of the High Court by a common order dated

March 6, 1991 upheld the order of

419

the Learned Single Judge and dismissed the appeals. The

Division Bench after considering Sections 3, 5 and 6 of the

Act of 1974 held that the purpose of preparation of the

reserve list seems to be that if the person selected at No.

1 does not join then the next man in the reserve list should

be appointed. But if the person selected by the Selection

Committee is given appointment and he joins, then, selection

made by the Committee is exhausted and the reserve list is

of no avail and becomes extinct. It was also held that once

a person selected by the Selection Committee has joined,

that post is filled and some vacancy is caused thereafter a

fresh and de novo selection committee 'procedure has to be

started because that will be a case of future vacancy aris-

ing after the post had been filled up on the recommendations

of the Selection Committee.

Aggrieved against the order of the Division Bench of the

High Court, Dr. Uma Kant as well as the University have come

in appeal by grant of special leave.

In order to appreciate the controversy we would advert

to certain relevant provisions of the Act of 1974. Relevant

provisions of Sections 3, 5 and 6 are as follows:

.LM15

Section 3 - Restrictions on appointments of

teachers and officers:

(1) Notwithstanding anything contained in the

relevant law, as from the commencement of this

Act, no teacher and no officer in any Univer-

sity in Rajasthan shall be appointed except on

the recommendations of the Selection Committee

constituted under Sec. 5.

(2) Save as otherwise provided in sub-s. (3),

every appointment of a teacher or of an offi-

cer in any University made in contravention of

sub-s. (1) shall be null and void.

Section 5--Constitution of Selection Committee

(1) For every selection of a teacher or of an

officer in a University, there shall be con-

stituted a committee consisting of the follow-

ing: -

(i) Vice Chancellor of the University con-

cerned, who shall be the Chairman of the

Committee;

(ii) an eminent educationist to be nominated

by the Chancellor for a period of one year;

420

(iii) an eminent educationist to be nominated

by the State Government for a period of one

year;

(iv) One member of the Syndicate to be nomi-

nated by the State Government for a period of

one year; and

(v) such other persons as members specified in

column 2 of the Schedule for the selection of

the teachers and officers mentioned in column

1 thereof.

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Section 6 - Procedure of Selection Committee

(1) The quorum required for the meeting of a

selection committee constituted under Section

5 shall not be less than five, out of which at

least two shall be the experts, if the selec-

tion to be made is for the post of a lecturer

or any other post of a teacher equivalent

thereto. The quorum required for the meeting

of a selection committee for the selection of

non-teaching posts shall be not less than one

half of the number of members of the Selection

Committee, out of which at least one shall be

an expert.

(2) The selection committee shall make its

recommendations to the Syndicate, if the

Syndicate disapproves the recommendations of

the selection committee, the Vice-Chancellor

of the University concerned shall submit such

recommendations alongwith reasons for disap-

proval given by the syndicate to the Chancel-

lor for his consideration and the decision of

the Chancellor thereon shall be final.

(3) Every selection committee shall be bound

by the qualifications laid down in the rele-

vant law of the University concerned for the

post of a teacher, as the case may be, of an

officer.

(4) The Selection Committee while making its

recommendations to the Syndicate under sub-

section (2) shall prepare a list of candidates

selection by it in order of merit and shall

further prepare a reserve list in the same

order and to the extent of 50% of the vacan-

cies in the post of teachers or officers for

which the selection committee was constituted

under sub-section (1) of Section 5 and shall

forward the main list and the reserve list

alongwith its recommendations to the Syndi-

cate.

421

Initially the reserve list was to remain valid upto six

months from the date of approval of the Syndicate as per the

resolution of the Syndicate dated 10th July, 1978 and subse-

quently the Syndicate by its resolution passed in its spe-

cial meeting on 3.12.1983 decided that the reserve list

recommended by the Selection Committee for selection of

employee be treated valid for one year instead of six

months. According to the University- this was done in order

to curtail the ad-hoc appointments and also because the

regular selections take a lot of time. It may also be noted

that the Syndicate in its meeting held on 10th July, 1978

had resolved as under:

i. Every Selection Committee may draw a Re-

serve List of suitable candidates upto a

number not exceeding 50% of the number of post

for which vacancies exist (part vacancy be

rounded or to the next whole number) and place

them in order of priority.

ii. The Reserve List of drawn be treated valid

upto six months the date of approval by the

Syndicate of the recommendations of the selec-

tion committee(s).

iii. On the vacancies caused within the cadre

during six months of the approval of the

recommendations, the candidates found suitable

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and placed in the reserve list be appointed in

the order of priority given by the Selection

Committee.

As already mentioned above the period of' six months was

subsequently extended to one year by resolution dated

3.12.1983. The University has taken a categorical stand that

since 1978 not only in the University of Rajasthan but all

other universities in the State of Rajasthan reserve lists

are prepared and appointments are being made from the re-

serve list against future vacancies arising on account of

resignation, retirement or promotion. A long list of ap-

pointments made from reserve list in various departments of

the University of Rajasthan from time to time after joining

of the persons from the main list from 1978 to 1990 have

been furnished by the appellants before this court by an

additional affidavit. It has also been stated that even out

of the petitioners who had filed the writ petition, Dr. T.N.

Bhardwaj himself was kept in the reserve list and was there-

after appointed on the post of reader having fallen .vacant

subsequently on account of the promotion of Dr. P. Khanna as

Professor.

Section 3 (1) of the Act of 1974 puts a restriction that

no teacher in any university in Rajasthan shall be appointed

except on the recommenda-

422

tions of the Selection Committee constituted under Sec. 5

(1), and, under Sec. 3(2) any appointment made in contraven-

tion of sub- section (1) of sec. 3 shall be null and void.

In the present case Dr. Uma Kant was recommended by the

Selection Committee constituted under Section 5. Sec. 5 only

provides for the constitution of Selection Committee. The

High Court has found that there was no violation of Section

5 in the Constitution of the Selection Committee and the

said finding has not been challenged before us on behalf of

the respondents. Section 6 provides for the procedure of

Selection Committee and sub-section (4) of Section 6 clearly

provides that the Selection Committee shall prepare a list

of candidates selected by it in order of merit and shall

further prepare reserve list in the same order and to the

extent of 50% of the vacancies in the post of teachers or

officers for which the Selection Committee was constituted.

The Syndicate in its Resolution dated 10th July, 1978 had

resolved that the reserve list recommended by the Selection

Committee shall be valid upto six months from the date of

the approval of the Syndicate which was subsequently extend-

ed to one year instead of six months in a resolution passed

on 3.12.1983. In our view the High Court was wrong in taking

the view that a regular vacancy of Professor having arisen

on the retirement of Dr. G.S. Nathawat on 30th September,

1989 again a fresh Selection Committee should have been

constituted and no appointment on such post could have been

made from the reserve list prepared by the Selection Commit-

tee on 20th June, 1989. Section 6(4) clearly provided for

the preparation of reserve list to the extent of 50% of the

vacancies in the post of teachers or officers for which the

Selection Committee was constituted. It is not in dispute

that the main list and the reserve list prepared by the

Selection Committee on 20th June, 1989 were approved by the

Syndicate. We agree with the contention of the university

that a reserve list is always prepared to meet the contin-

gency of anticipated or future vacancies caused on account

of resignation, retirement, promotion or otherwise. This is

done in view of the fact that it takes a long time in con-

stituting a fresh Selection Committee which has a cumbersome

procedure and in order to avoid ad-hoc appointments keeping

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in view the interest of the student community. The Selection

Committee in the present case was constituted for the selec-

tion of Professor in Botany and such Selection Committee had

approved and recommended the name of the appellant Dr. Urea

Kant in the reserve list finding him suitable for appoint-

ment on the post of Professor in Botany. The Syndicate which

is the highest executive body in the university had also

approved the name of Dr. Uma Kant in the reserve list which

remained valid upto one year and we cannot accept the con-

tention raised on behalf of the respondents that the reserve

list is exhausted as soon as the person recommended in the

main list joined the post. In the present case Dr. G.S.

Nathawat was selected on

423

20th June, 1989 and was going to retire on 30th September,

1989 and in these circumstances it was perfectly valid to

select one more person and to keep him in the reserve list

for being appointed on the regular vacancy which was shortly

anticipated on account of retirement of Dr. Nathawat. The

High Court committed a clear error in restricting the scope

of reserve list only against the post for which the selec-

tion was made and which according to the High Court could

only be available to the incumbent in the reserve list if

the person recommended in the main list did not join such

post. Such interpretation is not borne out from any of the

provisions of Section 3(1), Section 5 or sub-s. (4) of

Section 6 of the Act of 1974. The High Court took the view

that the expression 'appointment' in sub-sec. (1) of Sec. 3

shall mean appointed initially. Then, sub-sec. (1) of Sec. 5

provides that for every selection of a teacher in universi-

ty, there shall be constituted a Committee consisting of

persons mentioned therein. The High Court held that the

words "for every selection" are very pertinent and when read

with Sec. 3(1) and 3(2), it only means that whenever there

is a regular vacancy for a post, a Selection Committee has

to be constituted. When Dr. G.S. Nathawat retired on 30th

September, 1989, a regular vacancy arose and therefore a

Selection Committee should have been constituted afresh.

In our view the High Court was wrong in taking the

aforesaid view. Sec. 5 only provides for the constitution of

Selection Committee and the words "for every selection" used

in sub-sec. (1) of Sec. 5 only mean that in case of every

selection of a teacher or of an officer in university, a

Committee would be constituted of the persons mentioned in

sub-clause (i) to (v) of the said Section. So far as the

present case is concerned, even the High Court has arrived

to the conclusion that the Committee constituted for the

selection of a professor in Botany was proper and in accord-

ance with the provisions of Sec. 5 of the Act of 1974. The

appellant, Dr. Uma Kant was found suitable for the post of

professor in Botany and his name was recommended in the

reserve list by the duly constituted Selection Committee.

Sec. 6(4) of the Act of 1974 clearly provides that the

Selection Committee while making its recommendations to the

syndicate under sub-sec. (2) shall prepare a list of candi-

dates selected by it in order of merit and shall further

prepare a reserve list in the same order and to the extent

of 50% of the vacancies for the post of teachers or offi-

cers. Thus a reading of Sec. 5 with Sec. 6(4) makes it quite

clear that the Selection Committee constituted shall recom-

mend not only the candidates selected by it in order of

merit but shall further prepare a reserve list to the extent

of 50% of the vacancies and persons kept in the reserve list

will be considered as having been selected for the concerned

post and shall be entitled for appointment if any

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424

vacancy is caused during the validity period of the reserve

list. The suitability of the persons kept in the reserve

list is also adjudged by the Selection Committee which is

constituted for selection of a teacher in the university.

Thus no fault can be found that the incumbent recommended in

the reserve list by the Selection Committee was not selected

for the concerned post of teacher. In our view the very

purpose of preparing a reserve list would be defeated if the

view taken by the High Court is accepted that once a person

selected by the selection committee has joined that post

then selection made by the Committee is exhausted and the

reserve list is of no avail and becomes extinct. There was

no meaning or purpose of keeping the reserve list alive for

a long period of one year, as no person selected for the

post can at all be expected not to join for such a long

period of one year.

If we examine the matter from another angle, it would be

clear that according to the university such a procedure is

in vogue in all the universities of Rajasthan that a reserve

list is used for the appointment on a vacant post caused

during the validity period of the reserve list, and numerous

appointments had been made in the last decade from the

reserve list. The university has also submitted that if the

view taken by the High Court is held to be correct, it will

create chaotic situation in the university as all appoint-

ments so far made from the reserve list will become assail-

able. It is well settled that in matters relating to educa-

tional institutions, if two interpretations are possible,

the courts would ordinarily be reluctant to accept that

interpretation which would upset and reverse the long course

of action and decision taken by such educational authorities

and would accept the interpretation made by such educational

authorities.

In the result, we allow these appeals, set aside the

impugned Judgment of the High Court and hold the selection

and appointment of the appellant, Dr. Urea Kant as valid on

the post of Professor in Botany in the University of Rajas-

than.

T.N.A Appeals

allowed.

425