Supreme Court: The 3-Judge Bench of Ashok Bhushan*, R. Subhash Reddy and M.R. Shah, JJ., held that the Allahabad High Court had committed an error in quashing the appointment of the appellant as Assistant Professor and reverting him to the post of Lecturer as well as in quashing the order of the Chancellor. The Bench stated,
“When the appointment of the appellant was not challenged in reasonable time as per the provisions of the Act, 2002, it is not in the ends of justice to permit respondent 4 to challenge such appointment in the High Court in writ petition for the first time, after more than four years of the appointment.”
King George Medical University of Dental Sciences, Lucknow had invited applications for the post of Professors, Associate Professors, Assistant Professors and Lecturers by an advertisement dated 15-03-2005. Pursuant to which both the appellant and respondent 4 were appointed as Assistant Professor and Lecturer respectively. The appellant, who was working as Assistant Professor in BRD Medical College, Gorakhpur, after obtaining permission from State government, joined as Assistant Professor on 08-12-2005. The respondent No.4 submitted his joining as Lecturer on 08.08.2005.
Respondent 4 was promoted on the post of Assistant Professor on 08-08-2007 after completing three years experience. Subsequently, a representation was addressed by respondent 4 to the Chancellor of KGMU claiming seniority over the appellant. The respondent 4 claimed that his experience at the time of appointment as Senior Research Fellow in W.H.O. was not considered.
The Chancellor vide his order dated 08-07-2009 rejected the representation made by respondent 4 and held that experience at W.H.O. as Senior Research fellow could not be counted as experience. Aggrieved by the order of the Chancellor, the respondent 4 filed a writ petition before High Court. The Court by its impugned judgment dated 12-04-2018 had quashed the order of the Chancellor.
On legality of appointment of the appellant
The relevant Statute of the Lucknow University, which provides for qualification for the post of Assistant Professor was Statute 11.02 B2, which had prescribed as follows:
Statute 11.02 B2. Assistant Professor:
MDS or equivalent degree as recognised by the Dental Council of India in the subject concerned with at least three years teaching experience as Lecturer/Chief Resident/Senior Resident/ Demonstrator / Tutor or equivalent after obtaining MDS degree in the subject concerned. Provided that if suitable candidates with requisite teaching experience are not available the selection committee may recommend candidates for appointment in lower grade i.e. Lecturers.”
The Bench observed S. 53 of the King George Medical University Act, Uttar Pradesh Act, 2002, according to which if any question arises whether any person had been duly elected or appointed, the matter should be referred to the Chancellor, and the decision of the Chancellor thereon should be final. S. 56 had also contained proviso to the effect that no reference in this Section should be made more than three months after the date when question could have been raised for the first time. However, by the second proviso, Chancellor was empowered to entertain a reference after expiry of the said period.
Since the reference to the Chancellor was made by respondent 4 only on 13-02-2009, i.e., subsequent to his promotion as Assistant Professor and that the appointment of appellant as Assistant Professor was not even challenged before the Chancellor, the Bench opined that respondent 4 could not be permitted to challenge the appointment of appellant after four years in the writ petition i.e., in 2009.
The Bench distinguished with Nagendra Chandra v. State of Jharkhand , (2008) 1 SCC 798, relied by respondent 4, wherein it had been held, “if an appointment is made in infraction of the recruitment rules, the same would be violative of Articles 14 and 16 of the Constitution and being nullity would be liable to be cancelled” as the appellant was appointed by recommendation of Selection Committee with due approval of the Executive Council and the appointment was made after due advertisement. Regarding the prayer of respondent 4 that appellant should be reverted on the post of Lecturer the Bench opined that the same should not have been entertained by the High Court since there was no question of reversion of the appellant on the post of Lecturer considering he was initially appointed as Assistant Professor on 08-08-2005.
On non-inclusion of experience of respondent 4 as Senior Research Fellow in W.H.O.
With regard to the claim of respondent 4 to include his experience as Senior Research Fellow in W.H.O., the Bench clarified that in Section 10.01 (A) of the First bylaws of the Lucknow University which had been currently made applicable to the Medical University also there was no provision for considering the services done with WHO as Senior Research Fellow. Hence, the claim of respondent 4 of having seniority over the appellant was liable to be rejected.
As observed above, the Act which Governs the appointment of Assistant Professors and Lecturers in the University itself provides a mechanism for questioning an appointment, i.e., by representation to the Chancellor that too within a period of three months. Therefore, the Bench stated that,
Hence, High Court ought not to have entertained the challenge to the appointment of appellant in the writ petition and ought to have confined the consideration of claim of respondent 4 for seniority over the appellant.
[Pooran Chand v. Chancellor, 2021 SCC OnLine SC 47, decided on 29-01-2021]
Kamini Sharma, Editorial Assistant has put this story together.
*Justice Ashok Bhushan has penned this judgment