N THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
(1) Fateh Kishan Kapil Vs. Jai Narain Vyas University, Jodhpur &
D.B. Civil Special Appeal (Writ) No.312/2006 (2) Jai Narain Vyas University, Vs. Miss Prabha Bhandari & Jodhpur Ors. D.B. Civil Special Appeal (Writ) No.632/2002 (3) Jai Narain Vyas University, Vs. State & Ors. Jodhpur
D.B. Civil Special Appeal (Writ) No.663/2002 (4) Jai Narain Vyas University, Vs. Dr.AK Gupta & Ors. Jodhpur
D.B. Civil Special Appeal (Writ) No.65/2003 (5) Jai Narain Vyas University, Vs. Anil Pathak & Ors. Jodhpur
D.B. Civil Special Appeal (Writ) No.66/2003 (6) Dr. RP Tripathi Vs. Dr. AK Gupta & Ors. D.B. Civil Special Appeal (Writ) No.153/2003 (7) Anil Pathak Vs. Jai Narain Vyas University, Jodhpur
D.B. Civil Special Appeal (Writ) No.313/2006 DATE OF JUDGMENT :::: 7th April 2011 PRESENT
HON'BLE MR. PRAKASH TATIA, J.
HON'BLE MR. DINESH MAHESHWARI, J.
Servashri M. Mridual, MC Bhoot, PP Choudhary, Senior Advocates, SD Vyas, Narpat Singh, Mr. AK Choudhary, PR Singh and Sanjay Mathur, for their respective parties.
BY THE COURT: [Per Hon'ble Tatia, J.]
Heard learned counsel for the parties.
Four writ petitions, viz., SBCWP No.3451/2001 - Fateh 2
Kishan Kapil Vs. JNV University, Jodhpur & Ors, SBCWP No.3704/2001- Anil Pathak Vs. JNV University, Jodhpur & Ors, SBCWP No.4314/2001 - Ms. Prabha Bhandari Vs. State of Raj. & Ors, SBCWP No.4021/2002- Dr. AK Gupta Vs. JNV University, Jodhpur and SBCWP No.3933/2001 were clubbed which is apparent from the order dated 20th Nov., 2001 passed in SBCWP No.4314/2001 and all the above writ petitions were heard together by the single bench of this Court. However, all above writ petitions were decided by separate judgments delivered on different dates.
In brief we would like to give details of the facts of each petition in brief and final decisions given in above writ petitions by the single bench of this Court on different dates which is as under: -
1. SBCWP No.4314/2001 - Prabha Bhandari Vs. State of Raj. & Ors., decided on 30.8.2002 (under challenge in SAW No.632/2002):
This writ petition was filed by petitioner Ms. Prabha Bhandari. The above petitioner was aspirant for the promotion from the post of Reader in department of Political Science and Public Administration to the post of Professor under popularly known Career Advancement Scheme and the full name of above scheme is "UGC Regulations 2002 Regarding Qualifications for Appointment and Career Advancement of Teachers in Universities and Colleges" - A Scheme given by the University Grant Commission 3
(hereinafter referred to as 'the CAS') by purported exercise of powers conferred by clause (e) and (g) of sub-section (1) of Section 26 read with Section 14 of the University Grant Commission Act, 1956 (hereinafter referred to as the Act of 1956) superseding the regulations issued under University Grant Commission letter No.F1-93/74(CPP) Part (v) dated 13th June, 1983 and letter no.F1-11/87(CPP-II) dated 19th Sept., 1991 and notification no.1-93/74(CP) dated 19th Feb., 1984, 26th Nov., 1985 and No.F3-1/94(PS) dated 24th Dec., 1998. The petitioner before filing this writ petition took chance of her selection and promotion in the said Career Advancement Scheme (CAS) and she also appeared in the interview and before the results of selection could have been declared, preferred this writ petition. The petitioner by this writ petition sought to challenge the process of selection on the grounds that the respondent- university did not follow the procedure like the respondent- university did start the selection process in the month of Jan., 2001 without there being any orders of implementation, without issuing eligibility list of all the candidates due for promotion under the CAS nor issued seniority list in accordance with the Rules, which was mandatory requirement for initiation of the process for giving promotion to the post concerned under CAS. The petitioner specifically stated in the writ petition that the respondent-university was bound to follow the mandatory 4
guidelines issued by the UGC and the regulations framed by the UGC under Section 26 of the UGC Act were mandatory in nature and, thereafter, alleged that the respondent issued notification dated 7th Sept., 2001 after obtaining approval from the Chancellor vide letter dated 27th August, 2001 making changes in the selection committee was illegal as was violative of provisions contained in the Jai Narain Vyas University, Jodhpur Act, 1962. The petitioner also raised several other pleas which we need not to mention here in detail because of the reason that after referring all the pleas of the above petitioner in detail the learned Single Judge allowed the writ petition of the petitioner and selection for the post of Professor for Political Science Department was quashed on the ground of bias as respondent no.4 Prof. LS Rathore as Vice-Chancellor participated in the selection committee wherein he should not have participated because of the reason that one of the candidate Dr. PS. Bhati was his close relative and the selection committee could have proceeded even in the absence of the respondent no.4. The learned Single Judge, therefore, did not decide any of the issue raised by the petitioner obviously for the reason that the plea of bias alone was found sufficient to quash the selection process. The above judgment delivered by the learned Single Judge dated 20.8.2002 has been challenged by the respondent Jai Narayan Vyas University, Jodhpur by preferring SAW 5
2. SBCWP No.3451/2001- Fateh Kishan Kapil Vs. JNV University, Jodhpur & Ors, decided on 20th Sept., 2002 (under challenge in SAW No.663/2002
preferred by JNV University and in SAW No.312/2006 preferred by the writ petitioner Fateh Kishan Kapil:
The above petitioner Fateh Kishan Kapil's grievance was that in spite of his eligibility for promotion to the post of Professor he has not been called for interview under the above CAS and four persons junior to him have been called for interview. The petitioner found that Ordinance 317 making a change disadvantageous to the petitioner was not approved by the SENATE of the respondent-university and, therefore, amended Ordinance has not taken shape of law. Even it has not been approved by the Chancellor and the said change is void as well as has been carried without jurisdiction. The petitioner therefore, in addition to declaration that Ordinance 317 be declared void, in alternative, prayed that it may be declared that note appended to Ordinance 317 was not applicable to the Readers who have completed 8 years. The petitioner, therefore, sought relief of cancellation of selection process and prayed that the interviews held be declared illegal and direction be issued to the respondents to make a seniority list after considering the notification dated 14.3.2001 and declare the petitioner as senior to the persons named in the writ petition. The relevant fact is that the petitioner in this writ petition also claimed benefit under the CAS. 6
The learned Single Judge in this writ petition no.3451/2001 of petitioner Fateh Kishan Kapil after taking note of all the pleas taken by the petitioner and the respondents while in the process of finalizing of the judgment noticed that certain provisions of Rajasthan Universities Teachers and Officers (Selection for Appointment) Act, 1974 (hereinafter referred to as 'the Act of 1974') may have the bearing on the question in issue, therefore, decided to give notice to the parties regarding implication of Sections 11 and 12 of the Act of 1974. The learned Single Judge was of the view that as per section 12 (2) of the Act of 1974 there may be possibility that only one promotion was available under the Act of 1974 to the teachers of the University governed by the Act of 1974. The learned Single Judge then placed the matter for further arguments of the counsel of both the parties so that the implication of the provisions of the Act of 1974 can be considered and it appears from the impugned judgment itself that none of the parties submitted any more arguments on this question of law posed by learned Single Judge and, therefore, the learned Single Judge observed that "The implication of these provisions was studied. The parties were asked also about the implication of the amendment. Parties stated that they have understood the implication of the amendment. It was also submitted that nothing in addition to which has already been submitted, is 7
required to be submitted."
In the background of above facts, the learned Single Judge proceeded to examine the provisions of the Act of 1974 and amendments made time to time in the Act of 1974 vis-a-vis the CAS and about the authority of U.G.C. Under the U.G.C. Act, 1956. The learned Single Judge thereafter, held that there is no power seen in clause (e) and (g) of Section 26 of the Act of 1956 that authorizes the UGC for providing any promotional avenue and create a cadre in an University. Then the learned Single Judge held that, that being the position, the act of respondents in holding the selection for appointment under CAS cannot be considered to be legal exercise and consequently, there is no legal right in the petitioner which can be enforced and ultimately held that no mandamus can be issued in favour of the petitioner for participating in an illegal activity. The learned Single Judge then held that court cannot issue direction to any statutory authority to do something in violation of statutory provisions after relying upon the judgment of the Hon'ble Supreme Court delivered in the case of Karnataka State Road Transport corporation Vs. Ashrafulla Khan & Ors reported in JT 2002(1) SC 113. In view of the above declaration made in the impugned judgment dated 20th Sept., 2002 , the learned Single Judge held that it is not necessary to go into the other questions raised by the petitioner which will be decided in other writ 8
petitions pending adjudication.
3. SBCWP NO.4021/2001- Dr. AK Gupta Vs. State & Ors., decided on 18.12.2002 (under challenge in SAW No.65/2003 - JNV University vs. Dr. AK Gupta and in SAW No.153/2003 preferred by Dr. RP Tripathi:- This writ petition was preferred by Dr. AK Gupta who was Asstt. Professor in the subject of Physics as on 1st April, 1985 and was continuing as such and got the senior scale after completion of 5 years and therefore, was aspirant for the promotion under the CAS but amendment made in Ordinance 317 vide notification dated 13th July, 2001 and 7th Sept., 2001 came in his way, therefore, he prayed for quashing all those notifications with specific prayer that those notifications be quashed and set aside being ultra vires the regulations framed by the UGC in March, 2000, obviously referred above as CAS. The petitioner further prayed that respondents be directed to make provisions under the CAS as per the procedure prescribed under the Rules of 1990 and respondents may be directed to consider the case of the petitioner for promotion under CAS from the date he became eligible for such promotion as per the procedure prescribed under the Rules of 1990 and grant him promotion if he is found suitable. The petitioner also challenged the change in composition of the selection committee made by the Ordinance. In this case also, the petitioner preferred writ petition to get the benefit under the CAS.
The learned Single Judge specifically quoted the 9
reliefs claimed by the petitioner in the impugned judgment dated 18.12.2002 and also specifically took note of the plea of the petitioner that he is seeking order against the respondent-University to implement the said scheme and then, took note of the direction issued by the Ministry of Human Resource and Development (Department of Education) issuing necessary direction to the UGC to the effect that UGC shall frame regulations for implementation of the scheme.
Then the learned Single Judge firstly held that the cause of action arose to the petitioner in the year 1998 which has not been agitated by the petitioner at the relevant time when the petitioner's rights became mature, therefore, the writ petition was liable to be dismissed on the ground of delay and laches. Then secondly, it has been held that a provision for ex-cadre post has been deleted from the Act of 1974 then there remains no availability of chance of promotion on ex-cadre post and therefore, there cannot be any promotion on such post and ultimately, the petitioner's writ petition was dismissed. The judgment dated 18.12.2002 referred above, has been challenged in SAW No.65/2002 preferred by the JNV University and in SAW No.153/2003 preferred by Dr. RP Tripathi. Substantially, so far as second reason given by the learned Single Judge is based on the decision given in Fateh Kishan Kapil's case.
3. SBCWP No.3704/2001 - Anil Pathak Vs. JNV University, decided on 21.12.2002 (under challenge 10
in SAW No.66/2003 preferred by the JNV University and in SAW no.313/2006 preferred by the
petitioner Anil Pathak):-
In this writ petition also, the petitioner was appointed as Associate Professor on 3rd July, 1987 and, thereafter he was promoted to the post of Reader (Associate Professor) on 25th Sept., 1987 and at the relevant time he was the Head of Department of English of the respondent-University. The petitioner was also aspirant for the post of Professor under the CAS and he also facing the difficulty because of the amended provision in Ordinance 317 and, therefore, the petitioner preferred the writ petition to challenge the amendment in Ordinance 317 with further prayer that respondents may be directed to call the petitioner for interview treating him to be eligible for the promotional post and consider his case for grant of promotion and if found suitable be granted promotion.
This writ petition of the petitioner was decided on 21.12.2002. The learned Single Judge in this judgment found serious contradiction in the stand of the University and held that the selection process for all the departments which have been taken for appointment under CAS has been done in the light of the qualifications which according to the University itself has not been provided for CAS and, therefore, the exercise of promotion in the name of CAS is without jurisdiction. The learned Single Judge also observed that the process of promotion by only interview 11
which is too uncertain and, therefore a very limited credence can be given to such procedure and in the present case there are changes of misusing this facet. The learned Single Judge also observed "In this background, as situations stand presently, a re-thinking is required to be done about providing provisions for promotion to the University Teachers." Then learned Single Judge considered how the promotions are given in other services. The learned Single Judge held selections in questions to be discriminatory and also result of non-application of mind and violative of Article 14 of the Constitution of India and set aside the entire process of selection under CAS and dismissed the writ petition of the petitioner. To challenge the judgment dated 21.12.2002 the respondent-University preferred SAW No.66/2003 and writ petitioner preferred SAW No.313/2006.
The facts of above cases show that all writ petitioners were aspirant for the promotional post appropriate to their qualifications under the CAS and some of them even faced the interview who were eligible and others who were not found eligible, challenged the eligibility criteria adopted in process of selection for promotional post under the CAS and none of the petitioners challenged the scheme CAS and power and authority of the U.G.C. in framing the scheme and its binding nature upon the University, therefore, there was no fact foundation for challenge to the power and 12
authority of U.G.C. and to the CAS in the writ petitions. Further more, all the petitioners even did not challenge the CAS or U.G.C's authority and power during arguments which is apparent from the judgments impugned itself but, after hearing, it struck to the learned Single Judge that implication of certain provisions of the Act of 1974 was having material bearing on the issue and, therefore, the parties are required to be heard on this aspect again. The learned Single Judge ordered for listing up the matter in the court and passed the following order in SBCWP No.3451/2001 on 11th Sept., 2002 :
"The case was listed on a notice being issued to the parties to understand the implications of Section 11 and 12 of the Rajasthan Universities Teachers and Officers (Selection for Appointment) Act, 1974. The counsel for the respondent-University has produced an Amending Act dated March 30, 1998. To understand the amendment.
Put up tomorrow i.e., 12.9.2002.
On 12th Sept., 2002 the following order was passed: "Heard.
A question was posed regarding the implications of Section 11 & 12 of the Rajasthan Universities Teachers and Officers (Selection for Appointment) Act, 1974 (in short 'the Act of 1974'). Counsel for the University has produced before me the Amending Act which amends
Sections 2, 11 and 13 of the Act of 1974. It is 13
submitted that the implication of the amendment is understood by the counsel for the University and parties. Nothing further is required to be submitted by the counsel for the parties. Since the parties have understood the
implication of amendment produced, nothing further is required now. The case will be listed for pronouncement of judgment in future."
And thereafter, the different judgments were delivered on different dates.
All the learned counsels argued only on the issues decided by the learned Single Judge of this Court in Fateh Kishan Kapil's case irrespective of the fact in which case he is appearing. Only the learned counsel Shri M.C. Bhoot appearing in the case of Ms. Prabha Bhandari supported the judgment delivered in Fateh Kishan Kapil's case. We found that other matters were decided by the learned Single Judge on different grounds and reasons, yet learned counsels assailed the judgment of Fateh Kishan Kapil's case, obviously for the reason that if the judgment in Fateh Kishan Kapil's case is upheld and it is upheld that appointment and promotion can be given only under the Act of 1974 and under the Act of 1974 no posts of Professor (promotion), Reader(promotion) are available and Section 12 of the Act of 1974 has overriding effect over law enacted by State as well as over orders issued under Central Act, like UGC Act, 1956 and it is held that UGC had no power to create post for teacher in University under any of the 14
provisions of the UGC Act, 1956 and yet created the post then none of the petitioner can get any relief. Therefore, it will be appropriate for us to first examine the legality and validity of the judgment delivered in the case of Fateh Kishan Kapil.
To decide above issues, it will be appropriate to first look into the provisions of the Act of 1974, as they were and as they are after the passing of amending Act 3 of 1998 published in the Gazetted on March 30, 1998. The learned Single Judge noticed the preamble of the Act of 1974 which is :
"An Act to provide for (selection for appointment) of teachers and officers of the Universities in Rajasthan and for matters connected therewith."
The learned Single Judge held that this is an Act which was enacted for selection and appointment of teachers and officers in the Universities in Rajasthan. It provides for connected matters also and thereafter held that it cannot be said that this covers the entire field of incidence of appointment. The learned Single Judge held that Section 12 has been designed to give an overriding effect to the Act of 1974 as sub-section (1) of Section 12 says that the provisions of this Act will have effect notwithstanding anything contained in the "relevant law" and "relevant law" has been defined under sub-section (vi) of Section 2 which 15
""relevant law" means an enactment of
Rajasthan State Legislature establishing a University in Rajasthan and it includes the statutes, ordinances, bye-laws, rules, notifications or orders made thereunder and as amended from time to time."
Then the learned Single Judge noticed Statute 17 and sub-section (ix) of Section 2 of the Act of 1974 and held that neither statute 17 nor any provision of the Act of 1974 speaks of any promotion as provided under the UGC Regulations,2000(Career Advancement Scheme). The learned Single Judge then held that even Sections 26(e) and 26(g) of the UGC Act 1956 do not authorise the UGC to provide for any kind of cadre in the University or create posts and since posts of Professor(Promotion) or Reader (Promotion) have neither been provided in statute nor it is provided in the Act of 1974, then any reference made in Ordinance 317 is inoperative because of the operation of Section 12 of the Act of 1974, obviously, which according to the learned Single Judge has overriding effect and unless the provision is made under the Act of 1974, no post can be provided by any other law. The learned Single Judge also held that in view of sub-section (xi) of section 2 any vacancy in the post of a teacher can be filled up under and in accordance with the provisions of the Act of 1974 only and not otherwise. It certainly means that no other method 16
can be employed for giving appointment by way of promotion, otherwise than as provided by the Act of 1974. The learned Single Judge, after noticing the observations made in Craies on Statute Law, Sixth Edition by S.G.G. Edgar and the law laid down by Hon'ble the Supreme Court in the case of Dr. Rashmi Srivastava v. Vikram University and others (AIR 1995 SC 1694) found that Hon'ble Supreme Court held that mere adoption of a scheme would not by itself create a new source of recruitment for promotee Readers and Professors unless Section 49 of the M.P. Vishwavidhyalaya Adhiniyam was suitably amended. The learned Single Judge then again noticed the overriding effect of Section 12 of the Act of 1974 and held that Section 12 of the Act of 1974 negated the source of appointment otherwise than by the Act of 1974.
Relying upon the judgment of Rashmi Shrivastava the learned Single Judge held that "Hon'ble Supreme Court has considered such career advancement promotions to be an ex-cadre situation. Such promotions cannot be conceived in the present set of things, as reference to ex-cadre was present in the Act of 1974 which was consciously obviated." In addition to above, the learned Single Judge took note of the earlier procedure adopted by the University for same kind of promotions which were implemented only after incorporating Section 11 in the Act of 1974 and held that 17
from above facts, it is clear that the State has the understanding that any scheme providing for appointment can only be implemented if that is incorporated in the Act of 1974 and presently, such career advancement scheme having not been incorporated in the Act of 1974, therefore, is not enforceable.
On above reasons and findings, it has been held that the petitioner since seeking mandamus against the respondent for proper implementation of the Career Advancement Scheme referred above which has no legal sanction for the respondent-University appointment/ promotion, therefore, mandamus cannot be issued as mandamus can be issued to enforce the rule of law and not to pass an order or direction which is contrary to law. The learned counsel for the petitioners as well as other counsels challenging the judgment delivered in Fateh Kishan Kapil's case and the view taken/followed in other connected matters, drew our attention to the various provisions of the Act of 1974, the reasons and object for amending the Act of 1974 by the amending Act of 1998, the relevant provisions of the UGC Act, 1956 and the scheme framed thereunder and its effect and submitted that career advancement scheme as given by the UGC Regulations, 2000 has been accepted and implemented in all the Universities established or incorporated by or under a Central Act, Provincial Act or State Act, every institution including a constituent or an 18
affiliated college recognised by the University Grants Commission in consultation with University concerned under clause (f) of Section 2 of the University Grant Commission Act, 1956 and it covers every institution deemed to be a University under Section 3 of the Act of 1956 which is clear from sub-clause (ii) of clause (1) of the UGC Regulations, 2000. The Regulations, 2000 of UGC and Scheme as such is binding, is admitted case of all the parties. None of the party challenged the UGC Regulations, 2000 and C.A.S. (Schemes) nor is challenging and none of the party can challenge the action of the U.G.C. and its acceptance by Universities and by the Government.
The learned counsel for the petitioners and the counsels challenging the judgments referred above, submitted that the scheme(CAS) has not only been implemented in all the Universities in the entire country but also has been implemented in the State of Rajasthan in all other Universities except in respondent-the Jai Narayan University which is by virtue of the decision rendered by the learned Single Judge in Fateh Kishan Kapil's case. The learned counsel also submitted that none of the petitioner or respondent, in any of the writ petitions, decided by the learned Single Judge by different judgments, after hearing the arguments in all the matters together that UGC Regulations, 2000 was enacted de hors power, authority and jurisdiction of the University Grants Commission Act, 19
1956 nor any of the parties in the petitions or in the arguments challenged the UGC Regulations 2000 or challenged the action of the University in adopting the UGC Regulations on the ground of it being unenforceable or being not applicable to the Jai Narayan Vyas University and none of the party ever contended that promotion sought by the petitioners cannot be given in UGC Regulations, 2000. It is vehemently submitted that, to seek relief, one is required to plead facts and grounds and, thereafter, is required to seek relief from the Court. Here in this case, there was neither pleading nor arguments nor it was prayed by any of the parties that the UGC Regulations, 2000 be declared illegal, being issued exceeding jurisdiction under the Act of 1956 or are not applicable to the University etc. and, therefore, there was no prayer in the writ petition. In that situation, the learned Single Judge had no jurisdiction to make declaration as has been made in the impugned judgment. The learned counsel for the petitioners have challenged the impugned judgments except, learned counsel Shri M.C. Bhoot, counsel for the petitioner-Prabha Bhandari who gave different interpretations to the provisions of the Act of 1974, the Act of 1956 and the powers of the UGC under the Act of 1956 to support the judgments impugned.
We considered the submissions of the learned counsel for the parties as well as record and the relevant provisions 20
and the judgments relied upon.
We may look into the history of the Acts and creation of J.N.V. University and procedure for appointment of teacher in the University.
Initially the respondent-university at Jodhpur in the name of University of Jodhpur was established under the University of Jodhpur Act (No.17) of 1962. The name of Jodhpur University was changed to Jai Narayan Vyas University, Jodhpur by Jodhpur University (Change of name (Amendment) Act, 1991. The University's authorities as per Section 14 of the Act of 1962 are:-
(i) the Senate,
(ii) the Syndicate,
(iii) the Academic Council,
(iv) the Finance Committee,
(v) the Faculties,
(vi) the Committees of Courses and Studies, and (vii) such other authorities as may be declared by the Statutes to be the authorities of the Universities. The University has Supreme body known as "Senate" As per Section 15 of the Act of 1962, the Senate shall be the supreme authority of the University, and shall have the power to review the acts of the Syndicate and the Academic Council, and shall exercise all the powers of the University not otherwise provided for by this Act or the Statutes. Composition of Senate is given in sub-section (2) of Section 15 of the Act of 1962. As per sub-section (2), the Senate is 21
body constituted by large number of persons including persons holding very high offices. Number of members of Senate are not the persons within the University but are the persons holding high offices like, the Chief Justice of Rajasthan High Court, Jodhpur; the Minister for Education, Rajasthan, Chairman, Board of Secondary Education, Rajasthan; the Director of Education(Primary and Secondary), Rajasthan; the Director of Technical Education, Rajasthan; two members, not below the rank of the Head of the Government department which are,(i) Medical, (ii) Industries and Commerce, (iii) Forest, (iv)Public Works, (v) Mines and Geology and (vi) Development and Planning nominated by the State on rotation and also includes all the members of the Syndicate, all the Heads of University Departments of the status of a Professor or a Reader, one Principal or Head of constituent or affiliated colleges or institutions elected by the Principals and Heads of such colleges or institutions from amongst themselves, one member of the State Legislature nominated by the Speaker, one member each nominated by (i) the Ministry of Defence Research and Development Organisation, (ii) Oil and Gas Commission and (iii) the Central Arid Zone Research Institute, Jodhpur and further Chairman, Jodhpur Municipal Board/Corporation; two members to be nominated by the State Government. There may be life Members who fulfil the conditions which is provided under sub-clause (xi) of 22
clause (2) of Section 15. At this juncture, we may observe that it is difficult to count total number of members in the Senate. At present we are not concerned what are the aims and objects behind providing such a large body and we are not concerned how it will work, fact is that the Senate is the supreme authority of the University.
As per Section 16, the executive body of the University is Syndicate. The Syndicate is constituted by the following persons:
(ii) two persons nominated by the Vice-
Chancellor from amongst the Deans of
faculties or Directors of constituent colleges or Principals of affiliated colleges; (iii)two University Professors nominated by the Vice-Chancellor;
(iv)one educationist nominated by the Chancellor;
(v)Director of College Education, Rajasthan; (vi)two persons nominated by the State
(vii)two teachers who have put in not less than seven years teaching experience in
an institution of higher education in Rajasthan as on 1st January immediately
preceding the year in which elections are held, other than University Professors,
Deans, Principals, Head of affiliated colleges and Directors of constituent colleges of the University, to be elected by the teachers of the University and of its 23
constituent and affiliated colleges from
(viii)two members of the State Legislature nominated by the State Government; and
(ix)one person to be elected by the Senate from amongst students who are elected as
'other members' of the Senate under sub-
clause (a) of clause (xxviii) of sub-division III of sub-section (2) of Section 15 and
the ex-officio 'other members' of the
Senate under clause (xxix) of sub-division III of sub-section (2) of the said section. The Academic Council is the Chief Academic body of the University which shall have control and is responsible for general supervision and is responsible for the maintenance of standard of instructions,education and examination within the University and shall exercise such other powers and perform such other duties as may be conferred or imposed upon it by the Statutes. It also has advisory role to advise the Syndicate on all academic matters. Its constitution and the term of office members, other than ex-officio members, shall be prescribed by the Statutes.
Section 18 provides that subject to the provisions of this Act, the constitution, powers and duties of the authorities of the University, other than the Senate, the Syndicate and the Academic Council shall be provided for by the Statutes.
What can be provided by Statute is given under Section 21 of the Act of 1962 and how Statute can be made, is provided by Section 22 subject to the provisions of the Act of 1974 and the Statute referred above. There is provision for enacting Ordinance for all or any of the matters referred in clauses (a) to (m) under Section 23. Clause (j) of Section 23 provides that emoluments and terms and conditions of service of teachers of the University and other staff of the University may be provided by the Ordinances.
Section 24 provides how Ordinances can be made and in present controversy, one of the issues before us is with respect to the making of Ordinance because of the reason that one of the contentions of the learned counsel supporting the impugned judgment is that the procedure for making Ordinance as provided under Section 24 has not been followed, therefore, the relevant part of the Ordinance 317 is no Ordinance in the eye of law and cannot be enforced.
Law for securing impartial selection of personnel by a uniform standard of recruitment in all the Universities of Rajasthan was enacted in the name of the Rajasthan Universities Teachers and Officers (Special Conditions of Service) Ordinance, 1974(Ordinance No.17 of 1974) which was promulgated by His Excellency the Governor of Rajasthan on 21.7.1974. The said Ordinance was replaced 25
by the Rajasthan Universities and Officers (Special Conditions of Service) Act, 1974. Up to the year 1984, it was amended for six times. As stated above, this is an Act applicable for all the Universities in Rajasthan for providing for selection, for appointment of teachers and officers of the Universities in the Rajasthan and for the matters connected there with. The learned Single Jude was of the view that no appointment/promotion (including Ex-cadre appointments) can be given in the Universities of Rajasthan which is not provided by the Act of 1974 and this is disputed by the counsels for the petitioners assailing the impugned judgment. We have already noticed how the learned Single Judge felt persuaded to give findings recorded above in the impugned judgment, which we are called upon to re- examine in the light of the arguments advanced by the learned counsel for the parties with the help of all above referred provisions of laws, which we are going to examine hereunder.
After enacting the Act of 1974 and even after amendments made five times in the Act of 1974, non- availability of avenue for promotion to deserving teachers in the Universities was felt by the State and, therefore, amendment in the Act of 1974 was made in the year 1984 and new Section 2(i) and 2(ii) were inserted in the definition clause and new Section 11 in the Act of 1974 was inserted enabling the State Government to create ex- 26
cadre posts of Professor and Reader in each faculty of the University to the extent of 1/3rd of eligible persons as on 1st January of each year. After insertion of new section 11 in the Act of 1974, in the year 1984 , the Universities started giving promotions on ex-cadre posts of Professors and Readers. This procedure continued and during continuation of said procedure, in June, 1988 revised UGC pay scale were extended to the teachers in the Universities. The scheme of said pay revision also provided for avenue of promotion to the teachers in the University through the Career Advancement Scheme. The State thought it fit that now there is no reason to continue with the ex-cadre promotion scheme(obviously, which was provided by amendment of the Act of 1974) in all the Universities of State as sufficient personal promotional avenues became available under the Career Advancement Scheme framed by the UGC. The State felt that in view of this changed circumstance deletion of schedule and substitution of Section 11 in the Act of 1974 and some other consequential amendments are needed. Therefore, the State Government finding that session of Rajasthan Legislative Assembly was not going on and circumstances necessitated for the Government of Rajasthan to take immediate action, therefore, for the purpose of making necessary amendments in the Act of 1974, Ordinance be promulgated and the Rajasthan Universities Teachers and Officers 27
(Selection for Appointment) Ordinance, 1996 (Ordinance No.2/1996 was promulgated. Said Ordinance of 27.12.1996 ceased to operate with effect from 3.3.1997 as the State Government could not get it enacted as an Act in the short session of assembly, therefore, another Ordinance No.1/97 was promulgated by the Governor. Then it was decided that now the provision contained in Ordinance 2/1996 and Ordinance 1/1997 be enacted with retrospective effect on and from 27.12.1996 and Bill was placed before the Legislative Assembly. The above is the statement of objects and reasons for enacting the Rajasthan Universities Teachers and Officers (Selection for Appointment) (Amendment) Act, 1998. Therefore, it appears that because of subsequent development and because of availability of Ex-cadre promotion opportunities to the teachers of the University under CAS Scheme, the provisions providing Ex-cadre promotional opportunities in the Act of 1974 to teachers of Universities were considered to be of no use and, therefore, sub-clause (i) and (ii) inserted by amendment in the Act of 1974 deleted as they became unnecessary in view of adoption of new Scheme, i.e., CAS. Since before that appointments were made already in ex-cadre posts, therefore, those appointments were saved by new Section 11 in the Act of 1974. At this juncture, we may notice that, though Act of 1974 was amended in the year 1984 to provide opportunities of 28
promotion to University teachers but it was kept ex-cadre post promotion and under the U.G.C. Scheme also promotions are ex-cadre as it is not a cadre promotion. This is clear from the fact that the State Government made this provision under Section 11 after noticing that avenues for promotion to the teachers in the University were not available and then instead of making provision of cadred promotional posts, it was decided by the State to allow creation of ex-cadre posts of Professors and Readers in the Universities. This clearly suggests that law framer's intention was very clear from the beginning that in spite of regular appointments of Readers and Professors as already provided under the Act of 1974, further opportunities of ex- cadre appointment be provided. Therefore, along with the appointments under the Act of 1974 on the post of Reader and another on the post of Professor, ex-cadre promotion were permitted.
Since the Act does not provide for any post with the nomenclature Professor(Promotion), therefore, there is no promotional avenue defined in this Act. Sub-section(xi) of Section 2 of the Act of 1974 both before amendment in the year 1998 by the Act No.3 of 1998 as well as it is after amendment are also relevant which are as under:- "(xi) "University concerned" means the University in which a vacancy in the post of a teacher or an officer is to be filled up or an ex- cadre post of a Professor or a Reader is to be 29
filled up, by personal promotion of a Reader or, as the case may be, of a Lecturer, in accordance with and under this Act."
By Amendment Act No.3/1998 above clause (xi) was substituted by:-
"(xi) "University concerned" means the
University in which vacancy in the post of a teacher or an Officer is to be filled up under and in accordance with the provisions of this Act; and".
In the impugned judgment, it has been held that as per clause (ix) of Section 2 of the Act of 1974, the teacher can only be Professor, Reader or a Lecturer and such other person, by whatever name designated by or under the relevant law, imparting instruction, (or conducting and guiding research or extension programmes in a University), are the only persons who can get appointment and this view is fortified by the action of the State itself that when the State intended to provide promotional avenues then the State inserted the Section 11 in the Act of 1974 even for creation of ex-cadre post and now that ex-cadre posts have been made to continue only up to the time by which the person holding that promotional post under the provision of the unamended Section 11, retires and thereafter that promotional post shall stand abolished which is clear from the substituted section 11 of the Act of 1974, substituted by the Act of 1998, which provides transitional provisions 30
relating to ex-cadre promotion scheme. This new section 11 is as under:-
"11. Transitional Provisions relating to ex- cadre promotion Scheme- Personal promotion granted against ex-cadre posts under the erstwhile scheme of personal promotion, shall be entirely personal to the teacher concerned and the ex-cadre post to which such personal promotion was granted shall cease to exist as soon as the teacher promoted to such a post cases to hold that post permanently for any reason whatsoever, and on his ceasing to hold such ex-cadre post, the original post from which such personal promotion was made of a teacher shall revive."
We are of the view that the purpose for making amendment in the Act of 1974 by the amendment made in the year 1984 and subsequent amendment by Ordinances No.2/1996 and 1/1997 and by Act of 1998 substitution of Section 11, and deletion of Section 2(i) and (ii) are only for removing of promotional avenues to the teachers in the Universities in Rajasthan under the Act of 1974 and so was done purposefully to avoid claim of promotion to the ex- cadre post of Reader and Professor parallel, one under the Act of 1974 and another under U.G.C. Scheme. Therefore, the subsequent amendment in the Act of 1974 was to take out the ex-cadre post from coverage of Act of 1974 so as to make room for such or like posts under the scheme framed by the UGC under the Act of 1956. When promotion 31
avenues were not available in the Act of 1974, it was made and created in the Act of 1974 itself by amendment made in the year 1984. That purpose was achieved and subsequent event of a new scheme given by the University Grants Commission to be applied for all the Universities in the entire country, the State found that the provision for creation of ex-cadre post and promotion thereon could not have been continued under the Act of 1974, therefore, the Ordinances referred above and amendment Act, 1998 were promulgated and enacted and thus were not with intent to take away all promotion avenues of the teachers of the University in the State of Rajasthan.
The learned Single Judge was of the view that the Act of 1974 has overriding effect, it overrides all the Acts, Laws and since there is no provision for ex-cadre post in the Act of 1974, therefore, ex-cadre post appointment/promotion cannot be given in the University even if it is provided by the Central Act or thereunder as has been provided by the U.G.C. in present case. We are of the view that overriding effect of any Act can only override all other acts dealing with any matter covered by the Act which has overriding effect and all other laws shall cease to operate with the enactment of the act providing overriding effect. We found that there is no provision in the Act of 1974 (of State Act) which has overriding effect over Central Act and Regulations. Section 12 of the Act of1974 is relevant which 32
is as under:-
"12.(1) The provisions of this Act shall have effect notwithstanding anything contained in the relevant law.
(2) So much of the relevant law as provides for the matters covered by this Act shall, as from the commencement of this Act, cease to have effect as respects those matters."
A bare perusal of the Section 12 will make it clear that this provision specifically provides that provisions of the Act of 1974 shall have effect notwithstanding anything contained in the relevant law and though the learned Single Judge noticed what is the meaning of the words "relevant law" in the context of the Act of 1974, but it appears that learned Single Judge failed to notice that the U.G.C Act 1956 is not the "relevant Law" in the context of Act of 1974. The "Relevant Law" as defined in sub-clause (vi) of Section 2 is an enactment of the Rajasthan State Legislature establishing a University in Rajasthan and it includes the Statutes, Ordinances, bye-laws, rules, notifications or Orders made thereunder and as amended from time to time and not the Central law, Central By-laws and Central Regulations framed under the Central Acts. The decision of the Single Bench would, therefore, mean to declare that since any appointment/promotion can only be given in a University in Rajasthan under the Act of 1974 and all the other laws shall cease to operate, therefore, even the law framed under the Central Act or scheme framed under the 33
Central Act shall also cannot have binding effect and cannot be operated. This, in our opinion, is not the correct position of law and this view finds full support from the judgment rendered by the Hon'ble Apex Court in the case of Usmania University Teachers Association v. State of A.P. (AIR 1987 SC 2034). Not only this but Hon'ble the Apex Court in the case of Annamali University vs. Secretary of Government (2009) 4 SCC 590), even in the case where conflict was projected between two Acts enacted by the Parliament, under Schedule II List I Entry 66, that is UGC Act, 1956 and another enacted under List II Entry 25 of the Constitution, held that the UGC Act would prevail.
At this very place, we would like to mention here that Section 3 of the Act of 1974 though says that : "3.(1) Notwithstanding anything contained in the relevant law, as from the commencement of this Act, no teacher and no officer in any University in Rajasthan shall be appointed except on the recommendations of the Selection Committee constituted under Section 5.
(2) Save as otherwise provided in sub-section (3) every appointment of a teacher or of an officer in any University made in contravention of sub- section (1) shall be null and void.
(3) Nothing herein contained shall apply to the appointment of a teacher or an officer as a stop- gap arrangement for a period not exceeding one year or to the appointment of a pat time teacher or of a teacher or officer in the pay scale lower than that of Lecturer of Assistant Registrar 34
Explanation- The expression"appointed" in sub- section (1) shall mean appointed initially and not appointed by way of promotion."
However, the explanation appended to Section 3 made it clear that the expression "appointed" in sub-section (1) shall mean appointed initially and not appointed by way of promotion. Therefore, restriction as imposed by sub-section (1) of Section 3 by the Act of 1974, has no application to the appointment given by way of promotion and therefore, there is no restriction in the Act of 1974 for giving appointment by way of promotion under Section 3 of the Act of 1974. Otherwise interpretation will amount to adding the words "or appointment by way of promotion" which is impermissible and also would render the explanation appended to Section 3 of the Act 1974 redundant. Another aspect which though has been noticed by the Single Bench in the Act of 1974 that the Act of 1974 is an Act providing selection for "appointment of teachers" and the officers of the Universities in Rajasthan and the Act of 1974 as such is "not providing for regular promotions or ex-cadre promotion" from the post of initial appointment, either under the Act of 1974 as it was before amendment of 1984,nor even after amendment of 1984 which made provision under Section 11 of the Act of 1974 of creating ex-cadre posts of Reader(Promotion) and Professor 35
(Promotion) but it led to wrong interpretation that the subjects which are not covered by the Act stand prohibited. It is true, when procedure is prescribed by law then all other mode stand excluded even if not prohibited expressly but, here in this case, UGC has special power and authority under Central Act to deal in the affairs of the Universities, therefore, above principle has no application to the facts of this case. By deletion of Section 11, which was in existence before the amendment of 1996 and thereafter by the amendment Act of 1998, what has been taken away is only the scheme of personal promotion to teachers and Readers against the ex-cadre post and after substitution of new section 11 as substituted by the Ordinances of 1996, 1997 and the Act of 1998, the Act of 1974 remains as an Act providing for only appointment to the initial post of teachers and, therefore, there is a vacuum of legislation for any opportunity of promotion to the University teachers and this vacuum was created consciously by the State so as to permit the scheme formulated by the UGC under the Central Act, i.e. University Grant Commission, 1956 to occupy the field. Therefore, the UGC Regulations, 2000 could have occupied the field, as the subject as prescribed in scheme 2000 of the UGC is an independent scheme, contrary to which there is no provision in the Act of 1974 nor the Act of 1974 covers any of the fields provided in the Scheme of 2000. Therefore, strictly speaking sub-section (1) and (2) of 36
Section 12 are not losing their force and effect in any manner because of adopting CAS by the Universities in Rajasthan.
Again, as already stated above, there is no provision for regular promotion under the Act of 1974 and so is further clear from the definition of teacher given in sub- clause (ix) of clause (1) of Section of the Act of 1974 which says:
"(ix) "teacher" means a Professor, Reader or a Lecturer of any faculty of a University and such other person, by whatever name designated by or under the relevant law, imparting instruction or conducting and guiding research or extension programmes in a University."
It appears that purposefully all Professors, Readers and Lecturers have been included in the definition of 'teacher' as per sub-clause (ix) of sub-section 1 of Section 2 of the Act of 1974 and, therefore, the persons are to be appointed on such post of Professor, Reader or Lecturer and are not promoted from one post to another post and, therefore, there is no provision for constituting of selection committees under Section 5 of the Act of 1974 for giving "promotion" but the committee is constituted for "selection of a teacher" and as per teacher's definition given in the Act itself it includes Lecturer, Reader and Professor. At this juncture we may again recapitulate that Section 21 of the Act of 1962 provides that to give effect to the Act 37
of 1962, the Statute may be framed and how Statute can be made is provided under Section 22 of the Act of 1962 and Statute 17(1) says that members of the teaching staff in the University shall consist of the Professors, Readers or Lecturers or other persons serving on other posts mentioned in sub-clause (a) and (b). The learned Single Judge was of the view that in Statute 17 made by the University, there is no reference of post like Professor(Promotion) or Reader (Promotion), but as already stated that the Act of 1974 made provisions for cadred posts and, admittedly, the post in question which is under consideration before us is not the cadred post. Not only this, when the sub-clause (i) and sub- clause (2)(b) of sub-section(1) of Section 2 was in force even then the ex-cadre post was not as such referred, mentioned and included in Statute 17(1) or (2). The plain and simple reason is that the ex-cadre post was never got any reference, its name in Statute 17 and non-inclusion of any ex-cadre post in Statute 17 cannot debar the University to give ex-cadre appointment. At the cost of repetition we may state that the Act of 1974 bars only these appointments for which there is provision in the Act of 1974 and not barring ex-cadre appointments.
Now, if we look to the pleadings of Fateh Kishan's case wherein core issue was decided, then it was the case of even petitioner that U.G.C. has been constituted under the legislative power of the Union under Entry 66 of Schedule 38
VII and the area occupied by U.G.C. Act of 1956 cannot be infringed by the Act of the State. We would like to refer the pleading made in Fateh Kishan's case which is even referred in the impugned judgment at page 2.
The contention of the petitioner in Fateh Kishan Kapil's case was "that the University Grants Commission has been constituted under the legislative power of the Union under the Entry 66 of Schedule VII wherein it has been provided that in the matters of education, University will be guided by Regulations framed by the UGC. The Hon'ble Supreme Court in a case decided in the matter of Osmania University Teachers Association v. State of Andhra Pradesh and another (AIR 1987 SC 2034) held that State has got no power to pass any act which are in the same terms as that of the University Grants Commission Act, 1956 and thus area occupied by the Act of 1956 cannot be infringed by the Act of State."(emphasis supplied). The facts and the legal position as stated above made it clear that the University and the State Government have decided to give teachers of the University in Rajasthan, the opportunities under the regulations framed by the UGC and there is no law prohibiting implementation of UGC Scheme nor there is conflicting scheme in any law then it is clear from the statement of objects and reasons for the Act of 1998 that to facilitate the promotion under the regulations farmed by the UGC, the suitable amendments were made in the Act of 39
1974 then the University and the State were fully justified in taking a decision to implement the UGC Scheme. Neither the University disputed this legal position that University Grants Commission has been constituted under legislative power of the Union under Entry 66 of schedule VII and on framing regulations by the UGC, the University will be guided by those regulations nor any of the petitioner disputed. The learned Single Judge also has not rejected the contention of the petitioner that the State has got no power to pass any Act which is in the same terms as that of the University Grants Commission Act, 1956 nor has power to enact any law which is occupied by the Act of 1956. The intention of the State was clear and obvious that UGC regulations of 2000 providing CAS be adopted in the Universities in Rajasthan.
The learned Single Judge held that clause (e) and (g) of Section 26 of the University Grants Commission Act, 1956 nowhere provides for creation of cadre for post of teachers in the University. The Clause 26(e) and (g) of the Act of 1956 are as under:-
"(e) defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University having regard to the branch of education in which he is expected to give instructions; (g) regulating the maintenance of standards 40
and the coordination of work or facilities in Universities."
By virtue of clause (e), the UGC can define the qualification that should ordinarily be required of any person to be appointed to the teaching staff of the University and clause (g) empowers the UGC in regulating the maintenance of standards and coordination of work or facilities in Universities. The language is very widely used in above two clauses. The UGC Regulations, 2000 clearly says in sub- clause (2) of clause (1) of Regulations, 2000 that the regulations shall apply to every University established or incorporated by or under a Central Act, Provincial Act or a State Act. As we have already noticed that the regulations are binding upon the Universities as already held by the Hon'ble Supreme Court in the case of Osmania University Teachers Association(supra) and this position is not disputed by any of the parties nor contrary view has been taken by the learned Single Judge on this legal point. The learned Single Judge heavily relied upon the observations of the judgment of the Hon'ble Supreme Court delivered in the case of Dr. Rashmi Srivastava vs. Vikram University(AIR 1995 SC 1694) and held that Hon'ble the Supreme Court laid down that mere adoption of a scheme would not by itself create a new source of recruitment for promotee Readers and Professors unless Section 49 of the M.P. Vishwavidhyalaya Adhiniyam was 41
suitably amended. The learned Single Judge quoted the para from the judgment of Dr. Rashmi, which is as under:- "Statute 16 is also of no avail to the
promotees for the simple reason that Statute 16 deals with seniority of teachers of the University. This Statute is promulgated under Section 25(o) of the Act. Section 35(o) deals with the mode of determining seniority for the purpose of the Act. Consequently, it will have to be read with Section 49, meaning thereby when a Professor, Reader or Lecturer is recruited under Section 49, how his seniority is to be determined can be decided in the light of the relevant statute framed under Sec.35(o). As merit promotee Reader or Professor is outside the cadre there is no question of statute 16(2) operating in his case. It is also pertinent to note that merit promotee Professors or Readers form a separate distinct class as compared to directly recruited Professors or Readers. It is true that same Selection Committee which directly recruits Professors and Readers under Section 49(2), deals with the question of granting merit promotions to the concerned Lecturers as Readers and Readers as Professors. But that would not by itself
create a new source of recruitment for
promotee Readers and Professors unless
Section 49 was suitably amended."
It appears that the last lines of above portion of Dr Rasmi Srivastava's case was taken into consideration but the legal position is just otherwise. We found from the judgment of Dr. Rashmi Srivastava that Hon'ble Supreme Court formulated the points for consideration in para 37 of 42
the judgment and which are as under:-
"1) whether a merit promotee Reader or
Professor as the case may be in the service of respondent No.1 university can be treated at par with directly recruited Reader or Professor for the purpose of fixing their inter se seniority ? 2) If the answer to the first point is in the negative whether such merit promotee Reader and Professors cannot be considered as Professors and Readers for fixing inter se seniority of such promotee Readers and Professors and their seniority should be shown only in the cadre of Lecturer or Reader from which they are promoted?
3) Whether respondent No.1 university is
liable to pay any compensation to respondent No.4 in Civil Appeal No.6002/94?
4) Whether the pay scales of Professors
available to the appellants in C.A. No.6002/94 should be reduced?
5) What is final order?"
From above points formulated by the Hon'ble Supreme Court, it is clear that in Dr. Rashmi Srivastava's case, there was dispute with respect to the claim of inter se seniority between the merit promotee Readers and Professors of University and this issue cropped up because of the reason that in Vikram University of M.P. also, the University Grant Commission's CAS was implemented and promotions were given to the University teachers under that scheme which resulted into dispute between such promotee under scheme and Readers and Professors appointed under relevant law 43
framed for the University of M.P. In this judgment of Dr. Rashmi Srivastava, Hon'ble the Supreme Court even after noticing that there is no provision in the Act or Statute applicable to the said Vikram University giving opportunity of personal promotion and there was promotion for merit promotion in the statutory provisions applicable to the said University, the appointments of teachers on the post of Readers and Professors by way of promotion as well as ex- cadre both the appointments; one by way of merit promotion as provided under Section 49 of the M.P. Vishwavidhyalaya Adhiniyam and another under the scheme framed by the UGC are valid, legal and permissible. So has been held even after noticing that no amendments were made in the said Act applicable to the Vikram University. We would like to quote para 46 which is relevant for the purpose of deciding this controversy and according to us covers the entire issue and justifies the University action for providing promotional opportunities by accepting the scheme of the UGC, which is as under:-
"So far as this point is concerned we may note that the High Court by the impugned
judgment has taken the view in the last para of the judgment that the respondent university shall delete the names of respondents Nos.4 to 9 in M.P.1180/89 and respondent No.4 in M.P.208/89, from seniority list. A grave exception was taken by learned counsel for appellants to the aforesaid direction. It was submitted that once the merit promotion scheme 44
recommended by the Commission was adopted by the respondent University and once the concerned incumbents were promoted on merit as 'Reader or Professor as the case may be they were entitled to work as Readers or Professors even assuming that they were ex cadre employees. Hence it cannot be said that they should not be treated as Readers or Professors at all and their seniority should be shown only in the lower cadre of Reader or Lecturer as the case may be from which they were promoted on merit as Readers or Professors. In this connection they invited our attention to para 12 of the judgment to the effect that it is clear from the scheme annexure P/4 that by virtue of promotion under the said scheme, it is only the designation of the incumbent which is changed but in reality he remains in the same lower cadre of either Reader or Lecturer as the case may be. Consequently respondents 4 to 9 cannot be held to have been appointed by the University on clear vacant posts of professors and their names cannot be include in the seniority list of professors nor can they be considered senior to the petitioner. According to us no exception can be taken to the last part of para No.12, where it is observed that respondents 4 to 9 cannot be held to have been appointed on clear vacant posts of Professors nor can they be included in the seniority list of Professor nor can they be considered senior to the petitioner. But it must be clarified at this stage that even though they may not be included in the seniority list of cadre employees, namely, Professors or Readers it also cannot be held as assumed by the High Court that their merit 45
promotions were of no legal effect at all. In this connection, we must keep in view the salient features of the merit promotion scheme. It cannot be disputed that with a view to avoid stagnation amongst university teachers the Commission recommended a scheme of merit
promotion. The very preamble of the scheme shows that it is necessary to give reasonable opportunity for career advancement and recognition of merits and it is on the basis of competitive test for recognising outstanding work and merit that such merit promotions were given. Once a Lecturer is promoted on merit as Reader or a Reader as Professor even though the promotion may be personal to him he can
certainly continue to work as promotee Reader or Professor till he retires or otherwise ceases to be an employee of the university or till he is reverted for some valid reasons. There is no question of such a merit promotee being reverted otherwise to the lower cadre from which he came. He has to work as a Reader or Professor as the case may be and share the work load with the cadre employees. In fact as there is no vacancy created in the lower cadre from which he came on account of his promotion, he has also to share the burden of work load of the lower post. Consequently it cannot be said that such a merit promotee is not the Reader or Professor so far as his work as Reader or Professor is concerned. He cannot claim to be fitted in the inter se seniority list and may remain outside the cadre of Reader or Professor as the case may be. However, for all other purposes, like pay, work and status he is a Reader or Professor as the case may be." (emphasis supplied). 46
Therefore, whether there is any provision in the Act of 1974 or not for ex-cadre promotions, if U.G.C. framed the Regulations for promotions and the University accepted these Regulations which are binding upon the University, then ex-cadre promotion can be given by the University. The University made appropriate amendment in Ordinance 317, obviously to make room for ex-cadre post, which are not covered under the Act of 1974 following the regulations framed by the UGC by exercising its statutory powers under Section 26. Sub-clause (j) of Section 23 of the Jai Narayan Vyas University Jodhpur Act, 1962 says that terms and conditions of service of teachers of the University and other staff of University may be provided by the Ordinances and, therefore, the Ordinances as amended has force of law. The learned Single Judge found that Ordinance was not placed before the Senate and same is the argument of learned counsel Shri M.C. Bhoot who supported the impugned judgment. It has been contended that procedure as provided under Section 24 of the Act of 1962 has not been followed. According to learned counsel Shri M.C.Bhoot, Ordinance can be made by the Syndicate but the Ordinance cannot become law until it is considered and approved by the Senate and that too it must be in the next meeting to the date of decision of the Syndicate to make Ordinance or to amend Ordinance. This issue has been seriously 47
contested by the counsel appearing for the private parties and the counsel for the University. According to the learned counsel for the private parties assailing the impugned judgment and the counsel for the University, the Ordinance becomes effective forthwith with the approval of the Chancellor to the decision of the Syndicate and it is not required to be placed before the Senate. It is submitted that only when any Ordinance is placed before Senate only after approval of Chancellor and the Syndicate, if required, it can cancel the Ordinance and the Senate also can do so with effect from the date of its decision and not retrospectively. We gave thoughtful consideration to the submissions of the learned counsel for the parties on this contentious issue.
Section 24 as it exists today is as under:- "24(1) Ordinance shall be made by the
Syndicate, but no such Ordinance shall take effect until it has been approved by the Chancellor:
Provided that no Ordinance concerning admission to the University, or to its examinations, courses of study, schemes of examination, attendance and appointment of examiners shall be considered unless a draft of such Ordinance has been proposed by the Academic Council.
(2)The Syndicate shall not have power to amend any draft proposed by the Academic Council under the proposed by the Academic Council 48
under the provisions of sub-section (1), but may reject it or return it to the Academic Council for reconsideration, either in whole or in part, together with any amendments which the Syndicate may suggest:
Provided that no Ordinance affecting the
income or expenditure of the University shall be made, amended, repealed or added to, unless prior consent in writing of the State Government to the draft of such Ordinance has been obtained. (3)All Ordinances made by the Syndicate shall be submitted to the Senate, and shall be considered by the Senate at its next meeting. The Senate shall have power, by a resolution passed by a majority of not less than two- thirds of the members voting, to cancel any Ordinance made by the Syndicate and such
Ordinance shall from the date of such
resolution be void."
The sequence in which provisions have been made in Section 24 of the Act of 1962, it is clear that sub-clause (1) of Section 24 says that Ordinance shall be made by the Syndicate. Then says that no such Ordinance shall take effect until it has been approved by the Chancellor. Sub- clause (1) nowhere provides that the such Ordinance, before placing for approval of the Chancellor shall be placed before the Senate or it can be approved by the Chancellor only after the approval of the Senate. In the Universities in the State of Rajasthan, the Chancellor is His Excellency the Governor of Rajasthan. It appears that in sub-section(1) of 49
Section 24 of the Act of 1962, before 12th day of Feb, 1962, there were words in sub-section (1) of Section 24 "after considering the view of Senate" but those words have been deleted by the amendment Act of 17 of 1962. Therefore, before deletion of words "after considering the views of Senate" from sub-section (1) of Section 24 of the Act of 1962, the Ordinance could have taken effect after view of the Senate would have been obtained and only such Ordinance would have been approved by the Chancellor. Therefore, after the deletion of the words "after considering the views of the Senate" from sub-section(1) of Section 24 not only empowered the Syndicate in framing Ordinance but also provides for Ordinance's taking effect from the date of approval of the Chancellor without it going to Senate.
We have no hesitation in holding that sub-section (3) of Section 24 is not happily worded but, at the same time, it is clear from the language used in sub-section (3) of Section 24 itself that first part of this sub-section only says that all Ordinances made by the Syndicate shall be submitted to the Senate, and shall be considered by the Senate at its next meeting. This language cannot mean to say that unless Ordinance is placed before the Senate's first meeting and therein if Ordinance is approved by the Senate then only it will be placed before the Chancellor for its approval. Above view finds support from the language used in sub-section(1) 50
of Section 24 as well as from the second part of sub-section (3) of Section 24 of the Act of 1962 itself. Sub-section (1) of Section 24 starts with the language "Ordinances shall be made by the Syndicate....". Therefore, making of Ordinance can only be by the Syndicate. Then it cannot come in operation until it (Ordinance) has been approved by the Chancellor. The second part of sub-section (3) of Section 24 says that the Senate shall have power, by a resolution passed by a majority of not less than two-thirds of the members voting, to cancel any Ordinance made by the Syndicate and such Ordinance shall from the date of such resolution be void." The sub-section (3) of the Section 24 is silent after saying that all Ordinances made by the Syndicate shall be submitted to the Senate, and shall be considered by the Senate at its next meeting, but the second part says that the Senate shall have power to cancel the resolution passed by a majority of not less than two- thirds of the members voting. Therefore, even if Ordinance carried by the Syndicate and approved by the Chancellor can be cancelled by the Senate as the Senate is the highest body in the hierarchy, as made explicitly clear by sub- section (1) of Section 24 of the Act of 1962 but that power to Senate also has been given only to cancel the Ordinance from the date of resolution to be passed by not less than two thirds of the members voting in the meeting of the Senate. The last portion of sub-section (3) of Section 24 51
empowers the Senate to cancel the Ordinance from the date of Senate's resolution cancelling Ordinance. Holding it that Ordinance after framing by Syndicate will have to be placed before Senate then there was no reason to provide that the "Ordinance shall from the date of such resolution (of Senate) be void".
The above interpretation appears to be in consonance with the Section 16 of the Act of 1962. The executive body of the University is Syndicate and Senate is Supreme authority of the University as per sub-section (1) of Section
15. Therefore, power to make Ordinance has been given to Universities' Executive body for becoming operative and effective and the Ordinances made by the Syndicate after approval of the Chancellor, may become law, therefore, it has not been provided under sub-section (3) of Section 24 that the Ordinance made by the Syndicate shall be first submitted to the Senate and if it is approved by the Senate then will go to the Chancellor for approval. This interpretation appears to be sound for the reasons that Senate is not only supreme authority but the Chancellor is one of the members in Senate and, therefore, the power has been given to Senate to cancel the Ordinance under sub- section (3) of Section 24 as that would be the decision of the Supreme Authority of the University who has all powers under sub-section (1) of Section 15 of the Act of 1962 including power to review the acts of the Syndicate. 52
It appears from the Scheme of 1962 that separate powers have been given to the Senate and Syndicate with respect to framing of and enacting of statutory provision. The Senate has been vested with powers to make Statute as provided under Section 22 and power to make Ordinance has been given to the Syndicate under Section 24 of the Act of 1962. Sub-section (1) of Section 22 empowers the Senate to make new or additional Statute and amend or repeal existing Statute as provided under Section 22. The Syndicate may also propose to the Senate the draft of any Statute for acceptance and promulgation by the Senate as per sub-section (2) of Section 22. But no similar provision like sub-section (2) of Section 22 of the Act of 1962 providing for proposing Ordinance by Syndicate to Senate is provided under Section 24 which empowers only Syndicate to make Ordinance. Similar language as has been used in sub-section (3) of Section 24 of the Act 1962 as has been used in sub-section (2) of Section 22 which provides that the Draft Statute which may be proposed by the Syndicate "shall be considered by the Senate at its next meeting." The purpose of using above phrase has been made clear in sub- section (3) of Section 22 but words "draft" is not used in Section 24 for Ordinance. Be it as it may be, under Section 24, no such provision has been made as has been made under Section 22 requiring placing of draft Ordinances before the Senate, whereas since power to make Statute 53
vests in the Senate, the Syndicate only proposes the draft Statute to the Senate for its acceptance, whereas for Ordinances, it has been provided that "Ordinances shall be made by the Syndicate....". Therefore also, we are of the view that the Ordinance made by the Syndicate can be placed for approval of the Chancellor without placing it before the Senate and once the Ordinance becomes effective by the approval by the Chancellor, it is required to be placed before the Senate for its consideration. However, while considering the Ordinances, the Senate by virtue of power given under sub-section (3) of Section 24 read with sub-section (1) of Section 24 of the Act of 1962, can cancel any Ordinance made by the Syndicate and such cancelled Ordinance becomes void only from the date of resolution of the Senate and before that it is valid law. The learned Single Judge also considered the Statute 17 (the Statutes of University framed under Section 22). The Statute 17(1)(a) and (b) provides that members of the teaching staff shall consist of (a) servants of the University paid by the University and appointed by the Syndicate as Professors, the Readers or Lecturers or otherwise as teachers of the University; or (b) persons appointed by the Syndicate as honorary Professors, Readers or Lecturers or otherwise as teachers of the University. From Statute 17(1) (a) and (b) itself it is clear that the University can consist for not only Professors, Readers or Lecturers but there may 54
be other category of persons which is clear from the words "or otherwise as teachers of the University" used in both sub-clauses (a) and (b) of sub-section (1) of Statute 17 of the Statutes of the appellant-University. Therefore, the Statute having force of law which permits appointment of persons as the teachers by any name and we have already noticed that as per the definition of teacher given in sub- clause (ix) of sub-section (1) of Section 2 of the Act of 1974, teacher includes Professor, Reader or a Lecturer. The Reader and Professor, if appointed under the Regulations, 2000 of UGC(CAS) then they can certainly fall in the category of servants of the University paid by the University and to be appointed by the Syndicate in the category of "otherwise as teachers of the University". Giving power to the University to frame Ordinances by Section 24 of the Act of 1962 is also in consonance with sub-section (2) of Statute 5 which provides that Syndicate shall have the powers to appoint Professors, Readers, Lecturers and other members of the teaching staff. This power has not been made subject to control of the Senate and, therefore, sub-clause (2) has been separately framed and Syndicate has been made subject to the control of Senate in the matter to manage and administer the revenue and property of the University and the conduct of all administrative affairs of the University not otherwise provided for, which is clear from sub-clause (1) of Statute 5 55
of the Statutes. From the complete scheme as framed in the Act of 1962, Act of 1974 and amendments made therein and from the Statute, it is clear that the Syndicate alone has power to make Ordinances with right to Senate to cancel the Ordinances made by the Syndicate. In view of the above reasons also, the judgments impugned laying down that there cannot be other post of Professor and Reader and in the name of Professor(promotion) and Reader (promotion), is contrary to Statute 17(1)(a) and (b) of the Statute of the appellant University.
In the present case, it is not in dispute that amendment in the Ordinance 317 was made by the Syndicate and was placed before the Chancellor His Excellency Governor of Rajasthan, who in turn granted its approval which has been conveyed vide letter dated 9.7.2001. Therefore, the amendment made in Ordinance is valid and legal as it has not been cancelled by the Senate. We also perused the reasons given by the learned Single Judge delivered in the case of Dr.A.K. Gupta vs. State of Rajasthan & others (S.B.Civil Writ Petition No.4021/2001) decided on 18.12.2002 wherein the learned Single Judge held that "thus, amended Ordinance 317 is not considered to be a proper expression of legitimate powers which were required to be exercised." The learned Single Judge noticed that by amendment of Ordinance 317 of Reader(Promotion) and Professor(Promotion) have been incorporated but cadre 56
and nomenclature of the teacher is not provided under Ordinance 317 and relevant Act has not been amended by the University, and in isolation, Ordinance 317 has been amended. While considering this aspect of the matter, the learned Single Judge observed that the UGC in its letter dated 4.7.2000 nowhere mentioned that there was any consultation with the Government and thus the CAS as conceived by the Ministry of Human Resource Development, Govt. of India has not been framed as required under the orders of the Central Government. But from clause (j) of Section 23, we find that terms and conditions of service of teachers of University can be provided by enacting Ordinance or by making provision in Ordinance by amendment of Ordinance. We also do not find any material on record on the basis of which we can find support for such plea that UGC has made the Regulation, 2000 without following the procedure of law. Here in this case, admittedly, none of the party challenged the scheme, authority and power of the UGC in framing the Regulations, 2000.
The learned Single Judge also observed that what would be the status of promotee teachers , obviously under the CAS vis a vis the regularly selected teachers, will be a big question and likely to give rise to further confusion. These observations do not appear correct when viewed in the light of the decision of the Hon'ble Supreme Court 57
delivered in the case of Dr. Rashmi Srivastava in which precisely this issue has been considered by the Hon'ble Supreme Court and it has been held that even if there is no provision in the State Act for ex-cadre post, ex-cadre promotion can be given by the University and two promotions can co-exist.
At this juncture we may again recapitulate that in S.B.Civil Writ Petition No.4021/01 preferred by A.K. Gupta, the petitioner's stand is that CAS was required to be implemented by all the Universities. However, his contention was that each University was required to frame its statutory regulations, rules for giving effect to the CAS. On earlier occasion, the University framed rules for giving effect to the CAS which came into force w.e.f. 1.1.1986. Copy of the said rules annexed in the writ petition as Annex.1 reveals that Syndicate vide resolution dated 11.12.1989 and confirmed by Syndicate itself vide resolution dated 29.4.1990 framed the rules for implementing CAS for teachers at the level of Asst. Professor (Lecturer) in the University. Therefore, according to the petitioner himself, the Syndicate had power to frame rules. In the Act of 1962. words "Statue, Ordinances and Regulations" have been used and indisputably the Ordinance 317 was amended wherein the post of Reader(Promotion) and Professor(Promotion) have been referred and included. It is apparent from Annex.1 that said rules were given effect to and 58
implemented and followed. The learned Single Judge held that the cause of action arose to the petitioner A.K. Gupta in the year 1998. On that day, he was required to raise the question of his non-consideration. Having not done so at the relevant time when rights of the petitioner became mature, the petitioner has made himself liable to be shut on the grounds of delay and laches. Rejecting petitioner's petition on this ground, the learned Single Judge proceeded to examine the validity of Ordinance 317. We do not find any justification for examining the validity of Ordinance 317 by the learned Single Judge when it had been held that the petitioner was not entitled for any relief on the ground of delay and laches . However, we have considered the issue in detail and even after considering the arguments of learned counsel Shri M.C. Bhoot, we found no illegality in the action of University so far as acceptance and implementation of C.A.S. for giving promotions to the eligible candidates and in making Ordinance 317. One of the arguments advanced by the learned counsel Shri M.C. Bhoot was that the Ordinance 317 has not been published in the gazette and, therefore, it has not taken the shape of law. However, no specific provision has been pointed out by the learned counsel which requires publication of the Ordinance in the gazette. Be it as it may be. The learned counsels contesting the issue, obviously for the University and other counsels, submitted that even if 59
the Ordinance 317 has not been published in the gazette as amended, even then it became effective by virtue of sub- section (1) of Section 24, the provision which we have already discussed in detail above, wherein it has been provided that Ordinance shall take effect from the date of approval granted by the Chancellor. On this issue, we are benefited by the judgment of the Hon'ble Supreme Court delivered in the case of Sant Ram Sharma v. State of Rajasthan and others (AIR 1967 SC 1910) wherein a question was posed before the Hon'ble Supreme Court that if the executive council is held to have power to make appointment and laid down conditions of service without making rules in that behalf under proviso to Article 309, there will be violation of Articles 14 and 16 of the Constitution because appointment would be arbitrary and capricious. Hon'ble the Supreme Court held that "in our view, there is no substance in this contention of the petitioner. If the State Government had considered the case of the petitioner along with other candidates before appointment to the selection posts, there would be no breach of provisions of Articles 14 and 16 of the Constitution of India because every one who was eligible in view of the conditions of service and was entitled to consideration , was actually considered before promotion to those selection posts were actually made." In the above Sant Ram's case, Hon'ble Supreme Court held that even 60
administrative practice can be followed till statutory rules governing promotions are framed by the Government. Meaning thereby, even administrative instructions can be issued regarding principles to be followed for appointment. From the writ petitions we found that none of the candidate's contention is that his case has not been considered and that was because of the reason that the respondent-University or the UGC framed the Regulations, 2000(CAS Scheme) or University made the Ordinance 317 which denied the consideration of the petitioner's case for promotion. Therefore, even if the Ordinance 317 which as such may not have been required to be published in the gazette as not provided specifically by the statutory provision and even if so would have been just, proper or even necessary, even then there is no fact situation before this Court on the basis of which we can hold that the action of the respondent-University violated the principles of equality or is in violation to the Articles 14 and 16 of the Constitution of India.
In the case of Dhananjay Malik and others v. State of Uttranchal and others ((2008) 4 SCC 171), Hon'ble the Apex Court held that administrative instructions can fill up the gap between statutory rules, obviously if they are not in conflict with any statutory provision and we have already observed that there is no statutory provision or other provision in conflict with Ordinance 317. The case of Sant 61
Ram(supra) was again approved by the Hon'ble Supreme Court in the case of Union of India v. K.P. Joseph ( (1973) 1 SCC 194 and in the case of Dhananjay Mali(supra). In view of the above, we do not find any force in the submission of the learned counsel Shri M.C. Bhoot that because of the non-publication of the Ordinance 317 in the gazette, the entire CAS Scheme or process of promotion under the same scheme can be quashed.
The learned counsel Shri M.C. Bhoot vehemently submitted that the respondent-University preferred D.B.Civil Special Appeal No.114/03 to challenge the judgment of the learned Single Judge delivered in S.B.Civil Writ Petition No.3504/2001 dated 17.1.2003 wherein identical issues were involved and said D.B.Civil Special Appeal No.114/2003 though heard along with these appeals but the said D.B.Civil Special Appeal No.114/03 was withdrawn on 24.5.2006, therefore, the University has accepted the legal position as laid down in the impugned judgments and, therefore, the University cannot challenge the judgment passed in other writ petition which have been challenged in these appeals.
Firstly, withdrawal of D.B.Special Appeal No.114/2003 by the appellant-University cannot take away the right of other appellants who have challenged the basic judgment wherein the questions of law have been decided by the learned Single Judge. Secondly, the plea of estoppel cannot 62
be raised against the question of law. Thirdly, the judgment delivered in the case of S.B.Civil Writ Petition No.3505/2001- Dr. R.K. Genthey & ors. vs. State is a judgment of dismissal of the writ petition and no relief has been granted in favour of the petitioner by the Single Bench, therefore, the issue in D.B.Civil Special Appeal No.114/2003 was more of academic nature and University did withdraw that Special Appeal keeping challenge to basic judgment by seriously pressing other appeals. We have perused the judgment delivered in S.B.Civil Writ Petition No.3505/2001 dated 17.1.2003. The learned Single Judge disposed of the S.B.Civil Writ Petition No.3505/01 vide judgment dated 17.1.2003 after observing that Ordinance 317, as framed by the appellant-University, has been declared ultra vires and has been quashed, obviously, not in the S.B.Civil Writ Petition No.3505/01 but in the judgment which we have considered in this judgement, therefore, the basic order is impugned in these appeals and the judgment in S.B.Civil Writ Petition No.3505/01 itself has not decided the validity of Ordinance 317. The learned Single Judge in the judgment dated 17.1.2003, at page 25, after considering the selections dated 8.9.2001 and passing of the Ordinance on 7.9.2001 observed that "the Ordinance 317 having already been declared null and void, the effect of this argument will be unnecessary." Substantially, the judgment in S.B.Civil Writ Petition No.3505/01 itself has not 63
decided any issue. In that situation, the withdrawal of D.B.Civil Special Appeal No.114/03 by the respondent- University neither can debar the University from challenging the basic judgment rendered by the learned Single Judge in other cases nor can debar the private parties from challenging the judgment who have not withdrawn any challenge to the basic judgment deciding the legal issue. Further more, by judgment dated 17.1.2003 rendered in S.B.Civil Writ Petition No.3505.01, the learned Single Judge has in fact dismissed the writ petition of the petitioner and refused to pass any direction in favour of the petitioner, obviously against the respondent and held that while considering the all issues by the State Government, the State Government may consider the case of the petitioner also if found expedient, the claim of the petitioners may be gone into. Therefore, the challenge to such innocuous direction if has been withdrawn by the University, it cannot debar the University from agitating the issue which they agitated in these appeals. Therefore, also we do not find any substance in the argument of the learned counsel Shri M.C. Bhoot.
In the result, we conclude as under:-
(I) In view of the reasons above, D.B.Civil Special Appeal(Writ) No.312/2006-Fateh Kishan Kapil v. Jai Narayan Vyas University, Jodhpur & ors. and D.B.Civil Special Appeal No.663/2002-Jai Narayan Vyas University, 64
Jodhpur vs. the State & ors. are partly allowed and the judgment delivered in S.B.Civil Writ Petition No.3451/2001 is set aside, particularly as we do not agree with the decision of the learned Single Judge so far holding that the exercise of promotion in the name of Career Advancement Scheme is without jurisdiction and the whole process of promotion under the Career Advancement Scheme as undertaken by the University is illegal. Since the case of the petitioner-Fateh Kishan Kapil on merit has not been considered by the learned Single Judge so as to decide the claim of the petitioner on the basis of his qualification which he claims to be equivalent to the P.H.D. etc., therefore, that claim is required to be adjudicated by the learned Single Judge and the questions whether the petitioner's claim is covered by point no.2.5.0 or the present controversy is with respect to the promotion as provided in clause 2.0.0 and whether the the petitioner has been discriminated in the process of selection under the scheme known as Career Advancement Scheme, are required to be decided according to the claim of the petitioner and as contested by the respondent-University but by the Single Bench. Therefore, S.B. Civil Writ Petition No.3451/2001 is remanded to the learned Single Bench.
(II) D.B.Civil Special Appeal(Writ) No.65/2003-Jai Narayan Vyas University, Jodhpur vs. Dr. A.K. Gupta preferred by the appellant-University and D.B.Civil Special 65
Appeal(Writ) No.153/2003 preferred by Dr. R.P. Tripathi are against the judgment of the learned Single Judge delivered in S.B.Civil Writ Petition No.4021/2001 preferred by Dr. A.K. Gupta. The learned Single Judge dismissed the writ petition preferred by Dr. A.K. Gupta holding that the petitioner's claim is for his consideration for promotion in terms of the Scheme of 1990 and the cause of action accrued in the year 1998 and the petition is liable to be dismissed on the grounds of laches and delay. It appears that the appellant- University has preferred appeal even after dismissal of writ petition No.4021/2001 by the Single Bench holding that the petitioner is not entitled to any relief; some observations have been made by the learned Single Judge including there are references of having not been ex-cadre post in the Act of 1974 and the learned Single Judge observed that Ordinance 317 is not in proper express legislative power, therefore, has challenged the judgment. Dr. R.P. Tripathi challenged the above same judgment delivered in Dr. A.K. Gupta's writ as because of said judgment his appointment/promotion was affected. We are of the view that so far as the dismissal of the writ petition of the petitioner is concerned, that dismissal is not under challenge either by the appellant University or by Dr. R.P Tripathi in D.B. Civil Special Appeal Nos.65/2003 and 153/2003. All the observations made by the learned Single Judge, after holding that the petition is liable to be dismissed, cannot 66
come in the way of the appellant-University and particularly, those observations which run contrary to this judgment. At this juncture, it will be relevant to mention that the learned Single Judge in impugned judgment (delivered in S.B.Civil Writ Petition No.4021/2001) at page 36 held that University's earlier regulations, i.e, Regulations of 1998 stand repealed, therefore, we are of the view that the Regulations of UGC of 2000 and Ordinance 317 hold the field.
Therefore, D.B.Civil Special Appeal (Writ) No.65/2003 is allowed to the extent that such part of the impugned judgment dated 18.12.2002, which runs contrary to this judgment is set aside. However, S.B.Civil Writ Petition No.4021/01 shall stand dismissed. In view of the above reason D.B.Civil Special Appeal(Writ) No.153/2003 has become infructuous and the same is hereby dismissed. (III) In the case of S.B.Civil Writ Petition No.4314/01- Miss Prabha Bhandari vs. Jai Narayan Vyas University, Jodhpur & ors., the learned Single Judge allowed the writ petition on the ground that the respondent no.4-Vice Chancellor of the respondent-University incurred the disqualification under Section 6 of the Act of 1974 and could not have been Chairman of the Selection Committee and accepted the petitioner's allegation of the bias against respondent no.4 and held that the allegation of bias is enough to vitiate the entire process of selection in Political 67
Science. Since the learned counsels did not argue on merit of the claim of the petitioner in S.B.Civil Writ Petition No.4314/2004 before us, obviously for the reasons that if other points decided by the learned Single Jude going to the root of the matter are upheld by the Division Bench (by us), then the petitioner-Prabha Bhandari may not succeed in her petition. In view of the reason that D.B.Civil Special Appeal (Writ) No.632/02 which has not been heard by us on merits of the case of the petitioner, therefore, now it may be listed for hearing on its merit before the Division Bench. (IV) D.B.Civil Civil Special Appeal(Writ) No.66/2003 has been preferred by the appellant-University to challenge the judgment of the learned Single Judge dated 21.12.2002 delivered in S.B.Civil Writ Petition No.3704/2001, whereas the writ petitioner Anil Pathak also has preferred D.B.Civil Special Appeal No.313/06 to challenge the same judgment by which the appellant Anil Pathak's writ petition was disposed of by the learned Single Judge denying the relief to the writ petitioner. For the reasons forgoing, the decision of the learned Single Judge so far holding that the exercise of promotion in the name of Career Advancement Scheme is without jurisdiction and the whole process of promotion under the Career Advancement Scheme as undertaken by the University is illegal, is set aside. There are several other observations made against the working of the appellant- University and the directions have been given to the State 68
Government to consider the points as given in the last para of the judgment which are only suggestions of the Court to the State Government. The observations made by the learned Single Judge are only observations and, therefore, we do not find that those observations are required to be addressed by us because the University can certainly take the benefit from the observations, if the University finds it to be a good advise to them. So far as the personal merit in the claim of the petitioner for promotion is concerned, that has also not been addressed to this Bench during arguments, therefore, on merits of the case in D.B. Special Appeal No.66/2003 and D.B.Civil Special Appeal No.313/2006, the matters be listed for hearing before the Division Bench.
(DINESH MAHESHWARI),J. (PRAKASH TATIA),J. mlt./