Appointments made in violation of mandatory provisions of Statute would be illegal and thus void: SC

Pooran Chand v. Chancellor & Ors.

Civil Appeal Nos. 268-269 of 2021

29 January 2021

The three judges’ bench of Supreme Court consisting of Justice Ashok Bhushan, Justice R. Subhash Reddy, and Justice M.R. Shah allowed the appeal and set aside the judgment dated 12.04.2018 of the division bench of the Allahabad High Court, Lucknow Bench, and dismissed the writ petition filed by the respondent No. 4.

King George’s University of Dental Science, Lucknow invited application for Professors, Associate Professors, Assistant Professors and Lecturers. Both appellant and respondent no. 4 applied for an appointment on Assistant professor and Lecturer post, respectively. Subsequently, both got approval from the Executive council on 08.08.2005 for the post they have applied for. The appellant joined as an Assistant professor on 08.12.2005, while the respondent joined as a lecturer on 08.08.2005. Two years later, respondent no. 4 was promoted as an Assistant professor. Soon after this, respondent no.4 submitted the representations to the University claiming seniority over the appellant on the grounds that his experience as a senior research fellow in W.H.O was not considered at the time of appointment. But, the Chancellor has rejected his representation in an order dated 08.07.2009.

To challenge the order of the chancellor dated 08.07.2009, respondent no.4 filed a writ petition in Allahabad High Court, praying the following reliefs:

i. Issue a writ of certiorari quashing the impugned order dated 08.07.2009 passed by Opp. Party No.1 and impugned appointment order dated 08.08.2005 of OPP. Party no.4 as Assistant Professor contained in Annexure No.1 & 2 to the writ petition.

ii. issue a writ of mandamus / prohibition commanding the OPP. Party No. 1 to 3 to revert, back the OPP. Party 4 NO.4 from the post of Assistant Professor and post him in the post Lecturer from the date of joining forthwith.

iii. issue a writ of mandamus commanding the Opp. Party No.1 to 3 to declare the petitioner senior to the Opp. Party No.4 with all consequential service benefits.

iv. issue a writ of mandamus commanding the Opp. Parties to count the period of Senior Research Fellow as teaching experience in promoting the petitioner, as Assistant Professor.

v. any other writ, order or direction which this Hon’ble Court deem fit in the circumstances of the case may also be passed.

vi. Allow the Writ Petition with cost. (Para 3.4)

Division Bench of the High Court vide its impugned judgment dated 12.04.2018 allowed the writ petition and held in favour of the respondent no.4. aggrieved by that judgment the appellant has come up in the present appeal.

Ms. Meenakshi Arora learned senior council from the appellant side contended that the appellant had sufficient experience of two years from 19.07.2003 to 07.12.2005 as an assistant professor in BRD Medical College, he had been working for more than a decade as a dental surgeon. Since 01.09.1992, he was a member of the provincial medical service. That is why the selection committee found him eligible for the post of Assistant Professor. At the same time, the respondent knowing the fact had he had only one year of experience, applied for the post of lecturer.

The learned counsel also contended that respondent no. 4 had never challenged the appellant's appointment as an assistant professor in his representation neither to the university nor to the chancellor. It is only questioned after more than four years by respondent no.4 in his writ petition submitted before the Hon'ble High Court on 08.07.2009, and that's why it should not be entertained as it is beyond the reasonable time.

On the other hand, Shri S. R. Singh learned senior counsel from the respondent side accepted that respondent no. 4 was not eligible for the post of assistant professor at the time of appointment. But, contended that the appellant's experience as a provincial medical service member was wholly irrelevant in-regard to his appointment as an assistant professor. The only experience relevant to the appellant is of BRD Medical College, Gorakhpur, which is below three years. That's why he failed to reach the eligibility to appoint as an assistant professor.

To reach to the conclusion, the court referred relevant provisions and statute inclusive of Section 42 of the Act, 2002 provided for Statutes of the University, Statute 11.02 B2, Section 53 of the U.P. Act No. 8 of 2002, stated various judgements: Nagendra Chandra and Ors. Vs. State of Jharkhand and Ors., (2008) 1 SCC 798, Government of Andhra Pradesh and Ors. Vs. K. Brahmanandam and Ors., (2008) 5 SCC 241, Pramod Kumar Vs. U.P Secondary Education Services Commission and Ors., (2008) 7 SCC 153 and State of Jammu and Kashmir Vs. R.K. Zalpuri and Ors., (2015) 15 SCC 602.

To resolve the issue that whether the appellant’s appointment could be challenged after four years in the writ petition or not, the court noted that:

the appointment of appellant as Assistant Professor, which is approved on 08.08.2005 was not challenged or questioned by respondent No.4 in accordance with provisions of the Act, 2002. Although, in the writ petition filed by respondent No.4, he has made a prayer for quashing the appointment order dated 08.08.2005 of the appellant as Assistant Professor but we are of the view that the appointment of appellant as Assistant Professor having not been challenged before the Chancellor, he could not have been permitted to challenge the appointment of appellant. Appointment dated 08.08.2005 could not be allowed to be challenged after four years in the writ petition. (Para 16)

Regarding the representations and claims submitted before the chancellor by respondent no. 4 after his promotion as Assistant Professor demanding seniority over the appellant, the court noted that:

The prayer of the respondent No.4 that appellant should be reverted on the post of Lecturer could not have been entertained. There is no question of reversion of the appellant on the post of Lecturer when he was appointed as Assistant Professor on 08.08.2005. (Para 18)

Furthermore, relying on Section 53 of the U.P Act No. 8 of 2002, the court stated that:

If any question arises whether any person has been duly elected or appointed, the matter shall be referred to the Chancellor, and the decision of the Chancellor thereon shall be final. (Para 11)

There was no error in the order of the Chancellor rejecting the representation made by the respondent No.4. (Para 27)

Concluding, the Court held:

In view of the foregoing discussions, we allow the appeals and set aside the judgment of the High Court dated 12.04.2018. (Para 28)

Subsequently, the Court dismissed the writ petition filed by respondent No.4.

View/Dounload Judgment: Pooran Chand v. Chancellor & Ors.

Swadheen Singh