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PETITIONER:

THE COMMITTEE OF MANAGEMENT, VASANTA COLLEGE FOR WOMEN

Vs.

RESPONDENT:

TRIBHUWAN NATH TRIPATHI & ORS.

DATE OF JUDGMENT: 21/11/1996

BENCH:

N.P. SINGH, SUHAS C. SEN

ACT:

HEADNOTE:

JUDGMENT:

THE 21ST DAY OF NOVEMBER, 1996

Present :

Hon`ble Mr. Justice N.P.Singh

Hon`ble Mr. Justice Suhas C.Sen

A.K.Chitale, Sr. Adv., Niraj Sharma, Adv. with him for

the appellant

S.K. Gupta, and Anil Kumar Jha, Advs. for the

Respondents

J U D G M E N T

The following Judgment of the Court was delivered:

SEN, J.

Leave granted.

Vasanta College for Women, Rajghat Fort, Varanasi, is

an educational institution run by and under the control of

Krishnamurthi Foundation India. The post of Lecturer in

English fell vacant in the College. An advertisement was

issued by the College on 12.8.1989 in a number of newspapers

inviting applications for the post. The eligibility

requirement for the post according to the advertisement,

was:

(a) A good academic record and at least a high Second

Division in the Master`s Degree in the relevant

subject from a recognised University.

(b) A Doctorate or M.Phil. Degree or an equivalent

published work showing an ability to carry out

independent research work. DESIRABLE: A good

working knowledge of Hindi and English.

Tribhuwan Nath Tripathi was one of the candidates for the

post. Tripathi had a Master`s Degree in English, but did not

have any Doctorate or M.Phil Degree. Tripathi had a claim

that the had registered himself for Ph.D. in March, 19986 on

the research topic "Non-Romanticism in Modern British

Poetry". He had several publications and books to his credit

which were as under:-

Publications:

(i) Research Papers

(a) "Romanticisim and Neo-

Romanticism".

(Accepted for publication)

(b) "Surrealism and the English

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Neo-Romantics"

(Accepted for publication)

(c) "Treatment of Love in the

Poetry of David Gascoyne"

(Sent for publication)

(d) "Nature in the Hands of Dylan

Thoman"

(Under publication)

(ii) Books

Learning English

PartIV (1987)

PartIII (1988)

PartIV (1988)

PartV (1988)

(Bharati Pustak Mandir, Calcutta)

A Selection Committee was constituted to interview the

candidates. The Selection Committee comprised of two

external expert members and two representatives of Banaras

Hindu University - One was an expert in the subject for

which interview was conducted and the other expert was

nominee of the University, who may or may not be an expert

in the subject. But, when the interview by the Selection

Committee was held on 8.11.1989, the two representatives of

BHU failed to turn up. The other two members of the

Selection Committee, however, proceeded with the interview

and selected Tripathi for the post of Lecturer in English.

After the Selection Committee had selected Tripathi for the

post of Lecturer in English, the Manager of the College

wrote a letter dated 10.11.1989 to the Deputy Registrar of

the BHU, asking him to seek the approval of the Vice-

Chanceller to ad hoc appintment of Tripathi as Lecturer in

English with effect from the date he took over charge.

Officer on Special Duty (Acad. & Exams.) of the BHU wrote a

letter dated 23rd December, 1989 seeking clarification as to

why the appointment letter issued to Tripathi mentioned that

he had been offered ad hoc appointment as Lecturer only and

further continuation had been made conditional. It was

pointed out that the Selection Committee had recommended

Tripathi for appointment as a Lecturer. The Selection

Committee had also mentioned that Tripathi`s research work

and publications were assessed equivalent to Ph.D. On

January 8, 1990, the Manager of the College replied to the

letter dated 23rd December, 1989:-

"You will recall that the Managing

Committee of our College had

requested the Banaras Hindu

University to permit them to invite

one expert from outside for

selection of Lecturers. This was

approved by the Executive Council

of the BHU and made applicable to

all the affiliated colleges.

Accordingly we have been inviting

external experts out of the panel

of names supplied to us by the BHU

for this purpose. Our Managing

Committee has resolved as a policy

matter that permanent appointments

should be made only when both

experts are present in the

selection. Temporary or ad hoc

appointments can be made even when

one of the experts is absent. In

this case we had invited two

external experts for the Selection

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Committee but both were unable to

turn up on account of certain

disturbances in the city in spite

of having conveyed their

acceptance. Therefore, the

selection was held only with the

University nominee and one subject

expert in the committee. The

candidate selected did not have a

Ph.D. and had stated in the

interview that he has started

writing his thesis and will be

completing his Ph.D. shortly. In

view of the above facts, we have

decided to offer Shri T.N. Tripathi

an ad hoc appointment and this has

also been approved by the

University."

It may be mentioned that Tripathi had been offered an

ad hoc appointment by the Manager by letter dated 18.11.89

which was accepted by Tripathi by a letter dated 27.11.89 in

which he pointed out that the was not a candidate for ad hoc

appointment and there must have been some mistake which

should be clarified. It was stated by Tripathi that he was

the only candidate with published work in English Grammar

and had appeared before the Selection Committee. He was an

aspirant for the permanent post. He requested the college to

allow him to wait for the result of the interview for the

permanent post.

On 29.11.89 the Manager of the College informed

Tripathi in writing that the post against which he had been

appointed was a permanent post, but temporary appointment

was offered as he had not completed his M.Phil/Ph.D. Degree.

He further wrote:-

"You had mentioned in the interview

that you are writing your Ph.D.

thesis and will be submitting it

shortly. You will be considered for

a permanent appointment after

successful completion of your

Ph.D."

Tripathi was asked to join duty latest by December 15,

1990 failing which it would be presumed that he was not

interested in accepting the offer. On the December, 1989,

the Deputy Registrar of BHU informed the Manager of the

College that ad hoc appointment of Tripathi had been

sanctioned. On 12th December, 1989, Tripathi joined as

Lecturer in English on ad hoc basis. On 23rd December, 1989,

O.P. Tandon, an Officer special Duty at BHU pointed out to

the Manager of the College that Tripathi had been

recommended by the Selection Committee for appointment as

Lecturer in English. The appointment letter issued to

Tripathi mentioned that the had been offered ad hoc

appointment as Lecturer until 30th April, 1990 and further

continuation had been made conditional. The proceedings of

the Selection Committee also mentioned that "his research

work and publications are assessed equivalent to Ph.D." In

view of that what had been stated above, it was not clear

why Tripathi was not appointed on probation and instead

given ad hoc appointment. On 4th January, 1990, management

of the college passed a resolution for permanent appointment

of Anita Singh and for ad hoc appointment of respondent

although only one expert was present at the meeting. On 8th

January, 1990, it was pointed out on behalf of the college

in reply to the University`s letter dated 23rd December,

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1989 that due to the absence of one expert, permanent

appointment could not be given to Tripathi. On 27th March,

1990, Tripathi sought permanent appointment and explained

that delay in getting the Ph.D. thesis paper.

On 1st may, 1990, the period of ad hoc appointment of

Tripathi was extended upto 31st October, 1990 or permanent

appointment whichever was earlier. On 20th April, 1990, the

University had issued a certificate that pre-submission

seminar of Tripathi`s Ph.D. thesis had been held. A copy of

the certificate had been forwarded to the management. On

16th July, 1990, Tripathi filed a writ petition in the

Allahabad High Court seeking a writ of Mandamus for

permanent appointment and also an order against termination

of his service. On behalf of the appellant-College, an

advertisement was given in Employment News dated 25-31,

August, 1990 inviting applications for permanent Lecturers

in English, Geography and History. The required

qualification was, at least a high second class

M.Phil./Ph.D. or equivalent published work indicating the

candidate`s capacity in independent research work. It was

stated in the advertisement that if no suitable candidate

with M.Phil./Ph.D. was available, a candidate with good

academic record with at least two years` research/practical

experience may be appointed on the condition that he/she

will have to complete the Ph.D. within eight years of

appointment.

On 5th October, 1990, Tripathi informed the management

of the College that he had completed the research work and

his thesis had been submitted on 4th October, 1990 and a

certificate of University was enclosed, Thereupon, the

management of the College sent him an interview call letter,

But, Tripathi did apply for the post pursuant to the

advertisement nor did he turn up for the interview. But, he

filed a second writ petition No. 32900/90 challenging the

advertisement dated 31st August, 1990. This was followed by

a letter to the management not hold any selection in view of

the pendency of the writ petition. No interim order was

passed by the Court. On 29th December, 1990, Madhu Kapoor

was appointed Lecturer in English as a probationer. On 2nd

January, 1992, her appointment was confirmed. On the

October, 1993, Madhu Kapoor gave a three months notice of

resignation. On 9th October, 1993, management directed that

Madhu Kapoor gave a three months notice of resignation. On

9th October, 1993, management directed that Madhu Kapoor be

relieved with effect from the January, 1994 and fresh

advertisement was issued in Employment News dated 6-12

November, 1993 inviting applications to the post of lecturer

in English. On 11th January, 1994, the High Court on the

application of Tripathi passed an interim order that any

selection or appointment shall be subject to the writ

petitions filed by Tripathi. Tripathi claimed that in

january, 1991, he had obtained a Ph.D. degree from BHU. The

title of his thesis was "Neo-Romanticism in Modern British

Poetry".

When the writ petition filed by him was taken up for

hearing, the High Court held that there was no reason why

Tripathi should not have been appointed to the post of

Lecturer in English and the management was directed to

appoint Tripathi. The Court also directed that Tripathi`s

appointment pursuant to the advertisement dated 12th August,

1989 "shall be deemed to have been made on permanent basis

and shall entail the consequences in accordance with law".

The Committee of Management of the College has come up

in appeal and has contended that when appointment of Madhu

Kapoor was made, Tripathi had not challenged the

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appointment. Madhu Kapoor functioned as Lecturer for more

than three years and there is no reason why Tripathi should

be reinstated. The writ-petitioner would not have had any if

Madhu Kapoor continued to work as a Lecturer in the College.

The basic point is that Tripathi did not have the

requisite qualifications for appointment as Lecturer. He did

not have a Ph.D. Degree when he appeared for interview. That

is why an ad hoc appointment was given to him. This was done

on the basis of representation made by Tripathi before the

Selection Committee that he would get his Ph.D. Degree

shortly. But he failed to get the same even within the

extended time of appointment and, therefore, the management

had no alternative but to issue fresh advertisement for the

post of Lecturer. The ad hoc appointment was extended once

and had not been extended thereafter. A fresh appointment

was made. Madhu Kapoor functioned as Lecturer in English

till she voluntarily resigned after three years.

The contention of Tripathi is that the writ petition

was filed long before Madhu Kapoor was appointed. His case

is that the Selection Committees had recommended him for

appointment on permanent basis. The Committee had taken into

consideration the fact that he did not have a Ph.D. degree,

but considered his published work as equivalent to Ph.D. It

was for the Selection Committee to assess the merit of the

candidate. It was not the case of the management that the

Selection Committee had erred in it assessment. The case of

the management was that the two nominees of BHU, one whom

was for the management to arrange a proper meeting of the

Selection Committee. The management did not call for another

meeting of the Selection Committee but implemented its

decision in its own way. The selection Committee recommended

Tripathi to be appointed on permanent basis. The management

appointed Tripathi on ad hoc basis on the plea that the two

experts from BHU had failed to attend the meeting. If the

meeting was not held properly, then the college authorities

should not have acted on the basis of the recommendation of

the Selection Committee at all. In fact, no attempt was made

by the College authorities to convene another meeting of the

Committee to assess the merit of the candidates. In other

words, the management accepted the decision of the Selection

Committee and Tripathi was allowed to function as Lecturer

in English on ad hoc basis from 12th December, 1989 to 31st

October, 1990. Tripathi had duly completed his Ph.D. thesis.

There was some delay in obtaining the degree because of

fracture suffered by his supervisor, but ultimately, he

obtained his Ph.D. Degree. His prayer is to regularise his

appointment.

At the point of time when Madhu Kapoor was appointed as

Lecturer in English, Tripathi`s ad hoc appointment stood

terminated. Tripathi`s had accepted the ad hoc appointment

after making some protests but actually worked on ad hoc

basis and even got an extension of the appointment on ad hoc

basis. It was clearly explained to Tripathi at the time of

his appointment that if he obtained his ph.D. within a short

time, his appointment will be made permanent. It has been

stated on behalf of the appellant that the appointment was

given on the basis of an assurance given by Tripathi to the

Selection Committee. Unfortunately, Tripathi could not get

his Ph.D. Degree within a reasonable time after his

appointment. The management of the College, thereafter,

decided not to grant any further extension to the ad hoc

appointment of Tripathi and proceeded to advertise the post

once again and appointed Madhu Kapoor as Lecturer. It is

true that Tripathi had writ petitions challenging

advertisement and termination of his service. Tripathi could

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not get any interim orders as a result of which Madhu

Kapoor`s appointment was made unconditionally on permanent

basis.

What happened thereafter was a fortuitous event. Madhu

Kapoor after only three years` service resigned. The post

was readvertised. During the three years` tenure of Madhu

Kapoor, the respondent did not question the validity of

Madhu Kapoor`s appointment at all nor did he stake any claim

to the post occupied by her. The resignation of Madhu Kapoor

could not give rise to any right to the respondent. It is

true that in the meantime, he had obtained Ph.D. It is also

true that the conditions of recruitment had been relaxed to

enable an otherwise qualified person to obtain a Ph.D.

Degree within a period of eight years from the date of

appointment. But the case of the respondent has to be seen

on the basis of the rules on force at the time of his

appointment.

The respondent`s contention that he had published works

equivalent to Ph.D. at the time of appointment cannot be

accepted. He stated that he had submitted four papers. But

the papers were not published on the date of his

appointment. He had not given any particulars about the

journals or persons to whom he had submitted his papers for

publication. The only concrete thing he stated was that he

had written four books on English Grammar for school

children. But these were elementary works which could not be

treated as equivalent to Ph.D. in English.

The respondent that the Selection Committee was

satisfied as to the quality and standard of the work done by

him. The College management has pointed out that the experts

from BHU failed to attend the Selection Committee meeting.

The other expert who was in the Committee was the Supervisor

of the respondent himself. In any event, the appellant-

College being the appointing authority was entitled to

appoint the respondent on ad hoc basis giving a chance to

him to obtain his Ph.D. Degree within a reasonable time.

We are of the view that the contention of the

appellant-College must be upheld. Although, there was

considerable laxity on the part of the College authorities

in the way they have handled the case, we are of the view

that without strong grounds being made out, it would not be

right to unseat the person who has now been appointed as

Lecturer in English pursuant to the second advertisement.

The writ-petitioner was not qualified to be appointed as

Lecture when he mad his application pursuant to the

advertisement dated 12th August, 1989. Even then he was

appointed on ad hoc basis and was given a chance to acquire

the requisite qualification within a brief period. His ad

hoc appointment was extended once and thereafter it was not

extended. The petitioner did not have any subsisting right

for continuation of service at that point of time. His

position has not improved by the acquisition of the Ph.D.

Degree in January, 1991 after he ceased to be a lecturer

even on an ad hoc basis. He could have applied in response

to the advertisements that were issued subsequently. He

chose not to do so. We do not find any merit in the writ

petition. There is no reason to treat him as Lecturer even

after the period of ad hoc appointment was over and madhu

Kapoor functioned as lecturer in English for a period of

more than three years.

In that view of the matter, this appeal is allowed. The

order of the High Court dated 23.12.1994 is set aside. There

will be no order as to costs.

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