RANJANA SAXENA Vs. VICE CHANCELLOR ROHILKHAND UNIVERSITY

JUDGEMENT

(1.) A substantive vacancy in respect of the post of a lecturer in Zoology occurred in the Bareilly College, Bareilly and an advertise ment inviting applications to fill in the said post was published in the issue dated May 29, 1977 of National Herald, a copy whereof has been filed as annexure 'T to the writ petition. The petitioner applied for the said post and an interview letter dated 5th September, 1977 was issued requiring her to appear before the Selection Committee constituted for the purpose on 26th September 1977. It appears from the resolution of the selection committee dated 26th September, 1977, a copy whereof has been filed as annexure '17? to the writ petition, that the petitioner was selected unanimously for the post. The Selection Committee, however, resolved that she may be appointed temporarily upto 30th June, 1978. This was done notwithstanding the fact that the advertisement which had been issued was in respect of a substantive vacancy and even the letter which was sent to the petitioner for interview did not indicate that the post was to be filled in for a temporary period. It further appears that a letter of appointment was issued offering the petitioner temporary employment upto 30th June, 1978 in pursuance of the resolution of the Selection Committee and approval of the Vice-Chancellor as contemplated by section 31 (11) of the State Universities Act, 1973 (hereinafter referred to as 'the Act') was also sought for the same period. The case of the petitioner is that when she appeared to join her duties she made a protest to the Principal of the College about the offer of temporary appointment but she was asked by the Principal to accept the appointment as it was and put her signature in lieu thereof on the assurance that she would be made permanent. She accordingly joined her duties. According to her she subsequently made a representation in this behalf to the Managing Committee and made a request that her appointment may be treated as on a substantive vacancy. The Managing Committee, however, by its resolution dated 20th June, 1978 resolv ed as follows:- "Resolved that the appointment of Km. Ranjana Saxena against the substantive post as per Selection Committee recommendation dated 24.9.1977 be extended upto 31.10.1978 or upto the date of fresh appoint ment whichever is earlier." This resolution was communicated to the petitioner by the Principal of the College by his letter dated 27th June, 1978, a copy whereof has been filed as annexure "XVI'' to the wrti petition. Aggrieved by the stand taken by the management of the College the petitioner has instituted this writ petition with a prayer to quash the resolution of the Managing Committee dated 20th June, 1978 and for the issue of a writ in. the nature of mandamus or order or direction commanding the respondents not to disturb the petitioner's normal functioning as a lecturer in Zoology, Bareilly College, Bareilly. It was urged by counsel for the petitioner that the vacancy for the post of lecturer in Zoology having admittedly been of a substantive nature, the advertisement issued in this behalf having specifically stated that the post sought to be filled was a substantive one, that the letter of interview issued to the petitioner not having stated that the post was likely to be filled in or she was likely to be appointed only temporarily for a fixed term, it was not open to the Selection Committee, even after having selected the petitioner unanimously finding her fit to be appointed for the post, to resolve that she may be appointed temporarily till 30th June, 1978. It was also urged that the resolution of the selection committee finding her fit to be eligible for the post was severable from the recommendation that she may be appointed temporarily upto 30th June, 1978 and consequently the recommendation aforesaid was liable to be quashed and so was the resolution of the Managing Committee dated 20th June, 1978 extending the tenure of the petitioner's appointment upto 31st October. 1978 only in place of treating her to have been appointed on a substantive capacity liable to be quashed. Having heard counsel for the parties we are of opinion that there is substance in this submission. Bareilly College, Bareilly, is a college affiliated to the Rohilkhand University, Bareilly. Appointment of teachers which term in view of section 3 (18) of the Act means person employed for imparting instruction or guiding or conducting research inter alia in an affiliated college is regulated by section 31 of the Act. Sub-section (1) to (3), 4 (d), 8(b) and 11 of section 31 which are relevant for the purposes of the instant case read as follows:- "Appointment of teachers (1) Subject to the provisions of this Act, the teachers of the University and the teachers of affiliated or associated college other than a college maintained exclusively by the State Government or by a local authority, shall be appointed by the Executive Council or the Management of the affiliated or associated college, as the case may be, on the recommendation of a Selection Committee in the manner hereinafter provided, (2) The appointment of every such teacher, Director and Principal not being an appointment under sub- section (3), shall in the first instance be on probation for one year which may be extended for a period not exceeding one year: Provided that no order of termination of service during or on the expiry of the period of probation shall be passed- (a) In the case of a teacher of the University except by order of the Executive Council made after considering the report of the Vice-Chan cellor and (unless the teacher is himself the Head of the Department), the Head of the Department concerned; (b) in the case of Principal of an affiliated or associated college, except by order of the Management; and (c) in the case of any other teacher of an affiliated or associated college, except by order of the Management made after considering the report of the principal and (unless such teacher is the senior- most teacher of the subject), also of the senior-most teacher of the subject; Provided further that no such order of termination shall be passed except after notice to the teacher concerned giving him an opportunity of expianation in respect of the grounds on which his services are proposed to be terminated: Provided also that if a notice is given before the exprly of the period of probation or the extended period of probation, as the case may be, the period of probation shall stand extended until the final order of the Executive Council under clause (a) of the first proviso, as the case may be, until the approval of the Vice-Chancellor under section 35 is communicated to the teacher concerned. (3) (a) In the case of teacher of the University, if other than a Professor, the Vice-Chancellor in consultation with the Dean of the Faculty and the Head of the Department concerned and an expert nominated by the Chancellor in that behalf and in the case of a teacher of an affiliated or associated college, the Management in the consultation with an expert nominated by the Vice-Chancellor in that behalf make officiating appointment in a vacancy caused by the grant of leave to an incumbant for a period not exceeding ten months without reference to the Selection Committee, but shall not any other vacancy or post likely to last for more than six months without such reference. (b) Where before or after the commencement of this Act, any teacher is appointed (after reference to a Selection Committee) to a temporary post likely to last for more than six months, and such post is subsequently converted into a permanent post or to a permanent post in a vacancy caused by the grant of leave to an incumbent for a period exceeding ten months and such post subsequently becomes permanently vacant or any post of same cadre and grade is newly created or falls vacant in the same department, then unless the Executive Council or the Management, as the case may be, decides to terminate his services after giving an opportunity to show cause, it may appoint such teacher in a substantive capacity to that post without reference to a Selection Committee: Provided further that appointment in a substantive capacity under this clause of a teacher who had served, before such appointment, continuously for a period of less than two years, shall be on probation for one year which may be extended for a period not exceeding one year, and the provisions of sub- section (2) shall apply accordingly. (4) (d) The Selection Committee for the appointment of other teachers of an affiliated or associated college (other than a college maintained exclusively by the State Government or by a local authority) shall consist of- (i) the Head of the Management or a member of the Management nominated by him who shall be the Chairman; (ii) the Principal of the college and another teacher of the college nominated by the Principal; (iii) two experts to be nominated by the Vice-Chancellor: Provided that in the case of a college where there is no Principal or other teacher available for being a member of the Selection Committee under sub-clause (ii), the remaining members referred to in this clause shall constitute such Selection Committee: Provided further that in case of colleges established and administered by a minority referred to in clause (1) of Article 30 of the Constitution of India, the experts shall be nominated by the Management from out of a panel of five experts suggested by the Management and approved by the Vice-Chan cello r; 8 (b) In the case of appointment of a teacher of an affiliated or associated college, if the Management does not agree with the recommendation made by the Selection Committee, the Management shall refer the matter to the Vice-Chancellor along with the reasons of such disagreement, and his decision shall be final: Provided that in the case of appointment of a teacher of an affiliated or associated college, established and administered by a minority referred to in clause (1) of Article 30 of the Constitution of India, if the Management does not agree with the recommendation made by a Selection Committee, the Management shall have the right to appoint another Selection Committee and decision of that Committee shall be final. (11) (a) No teacher recommended by the Selection Committee shall be appointed by the Management of an affiliated or associated college (other than a college maintained exclusively by the State Government) unless prior approval of the Vice-Chancellor has been obtained. (b) The Management shall, as soon as possible, after the meeting of the Selection Committee, submit the recommendations of the Committee, along with other relevant documents to the Vice-Chancellor for approval. (c) The Vice-Chancellor, if he is satisfied that the candidate recommended by the Selection Committee does not possess the minimum qualification or experience prescribed or that the procedure laid down in the Act for the selection of the teacher has not been followed, shall convey to the Manage ment his disapproval: Provided that if the Vice-Chancellor does not convey his disapproval within a period of one month from the date of receipt of the documents referred to in clause (b), or does not send to the Management any intimation in connection therewith, he shall be deemed to have approved of the proposal. Statute 10.06 of the First Statutes of the University of Rohilkhand framed under the Act is also relevant and it reads:- "10.06 (1) If the Selection Committee recommends more than one candidate for appointment, it may in its discretion arrange their names in order of preference. Where the Committee decides to arrange the members in order of reference, it shall be deemed to have signified that in the event of the first being not available the second may be appointed, and in the event of the second also, being not available, the third may be appointed, and so on. (2) The Selection Committee may recommend that no suitable candi date for appointment is available in such a case the post shall be re-advertised." A conspectus of the Act and the relevant statute make it apparent that section 31 of the Act read with relevant statute constitutes a complete code for the appointment of teachers inter alia in an affiliated college. Section 31 contemplates only four kinds of appointments: (1) A substantive appointment under sub-section (2) on probation for one year which may be extended for a period not exceeding one year. (2) An officiating appointment in a vacancy caused by the grant of leave to an incumbent for a period not exceeding ten months without reference to the Selection Committee. (3) Temporary appointment on a vacancy or post likely to last for more than six months, and as its corollary. (4) Temporary appointment on a vacancy or post likely to last for less than six months without such reference. Section 31 does not contemplate any temporary appointment on a sub stantive post. Appointment on such a post in view of the mandatory nature of the requirement of its sub-section (2), has to be made in the first instance on probation for one year which may be extended for a period not exceeding one year. The language of sub-section (2) by necessary implication excludes a temporary appointment on a substantive post. Consequently when the post for which advertisement had been issued as aforesaid was a substantive post and the letter of interview which was issued to the petitioner also did not convey any information to the contrary, it goes without saying that the Selection Committee which was constituted under section 31 (4) (d) had been constituted for selecting a candidate for appointment on a substantive post on probation as contemplated by section 31 (2) of the Act. While being of unanimous opinion that the petitioner was the most suitable candidate out of those who appeared at the interview for the said post it was not open to the Selection Committee to recommend appointment of the petitioner temporarily _upto 30th June. In this context it is of importance to note that no two criteria about qualifications have been prescribed in regard to eligibility of candidates for permanent appointment and temporary appointment. The qualifications for both such appointments are the same. As such it is not possible for a Selection Committee to take the stand that even though a person is not qualified or suitable for permanent appointment yet he or she is qualified or suitable for a temporary appointment. In case of both such appointments if the Selection Committee is of the opinion that no qualified or suitable candidates have appeared at the time of interview the only course open to it is as is contemplated by clause (2) of statute 10.06 namely, to recommend that no suitable candidate 'for appointment is available so that the post may be re-advertised. Consequently the petitioner having been unanimously found by the Selection Committee to be suitable for appointment it can by no stretch of imagination be inferred from the recommendation added by the selection committee that she may be appointed temporarily upto 30th June, 1978 that the petitioner was found suitable only for a temporary appointment and not for a permanent appointment. In this background we are of opinion that when the Selection Committee was constituted for selecting a candidate for appointment on substantive basis as a lecturer in Zoology it was not open to it to make the aforesaid recommendation and the said recommen dation is clearly severable and deserves to be quashed. The view which we take finds support from the decision of this court in Babu Ram Sqran v. Badri Narain Khanna (1956 A. L. J. 355), as also from the decision of the Supreme Court Mahaboob Sherrif and Sons v. Mysore State Transport Authority (1960 S. C. J. 402). In Babu Ran Saran's case (supra) a permission to file a suit for ejectment against his tenant was granted to the landlord under section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947. The order granting the permission allowed the tenant two months' time to shift to some other accommodation. Argument was raised that the order being conditional was invalid. It was held that even assuming that the order was conditional and the condition imposed was invalid the impugned order itself cannot be vitiated on this ground. The order itself was a perfectly valid one, and the valid portion being severable from the invalid portion, the result would be that, the order itself would stand and the alleged invalid condition attached to it cut out. In the case of Mahaboob Sherrif and.....................this question arose in connection with renewal of permit under section 58 of the Motor Vehicles Act. The relevant provisions of law required the period of renewal to be not less than three years and more than five years. The duration of renewal which was granted in that case was, however, for one year only. The question arose as to what relief was to be granted to the petitioner in that case. It was held:- "This raises the question of severability of a part of the order passed by the Authority. The principles on which any unconstitutional provi sion can be severed and struck down leaving other parts of a statute untouched were laid down by this court. In R.M.D. Chamarbaugwalla v. Union of India (1957 S.C.R. 930 = A.I.R. 1967 S.C. 628), and the first principle is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. This principle relating to statutes was extended by this court to orders in Sewapujanral Indrasanrai Ltd. v. The Collector of Customs (1959 S.C.R. 821 = A.I.R. 1958 S.C. 845), where a part of the order of the Collector of Customs was quashed. The question therefore, resolves into this; would the Autho rity have ordered renewal if it knew that it could not reduce the period of a permit to below three years looking at the facts of these cases which we have set out earlier, it is to our mind obvious that the Authority would have granted renewal in the circumstances of these cases when it did so in December, 1958, The previous permission in these cases had expired on 31.3.1958, and the petitioners had been plying their stage carriages right up to the time when the order was passed on 15.12.1958; they could not do so without a permit in view of S. 42 of the Act, there fore, renewal in these cases was certain when the order was passed on 15.12.1958. In the circumstances it is open to us to sever the illegal part of the order from the part which is legal, namely, the grant of the renewal." In the instant case also as seen above if the qualifications of a candidate for appointment on a permanent basis were different from that of a candidate to be appointed on a temporary basis it could have been said that in view of its recommendation the Selection Committee found the petitioner suitable only for a temporary appointment upto 30th June, 1978. Since, however, the qualification for appointment are similar whether the selection is for a perma nent post or for a temporary post the result of the deliberations of the Selec tion Committee is that the petitioner would be deemed to have been found suitable for appointment on a substantive basis when the post advertised was a substantive one and the Selection Committee had been constituted to select a candidate to fill in that post, for this reason resolution passed by the Selection Committee on the basis of its unanimous opinion that the petitioner was a suitable candidate for that post and its recommendation to the effect that she may be appointed temporarily till 30th June, 1978 are clearly severable. In Civil Misc. Writ Petition No. 5276 of 1978 Km. Madhu Jain v. Chan cellor, Rohilkhand University and others, decided on 19th January, 1979 almost similar questions were raised before a Division Bench of this Court. In that case Km. Madhu Jain had been selected by the Selection Committee for appointment on a substantive post. The Selection Committee in that case, however, had not made any such recommendation as was made in the instant case that the appointment may be made temporary but the Managing Committee chose to appoint Km. Madhu Jain on a temporary basis for one year and obtained the approval of the Vice-Chancellor accordingly. It was held in that case too that section 31 of the Act provides a complete code regarding the mode of appointment of teachers of an affiliated college of the University. It was held that it was not open to the Managing Committee to make such an appointment in the teeth of section 31 of the Act. Even though no prayer had been made in that case for quashing of the approval granted by the Vice-Chancellor for a temporary appointment even that order was quashed insofar as it fixed the period of the appointment of Km. Madhu Jain upto 30th April, 1977 as subsequently extended along with the conse quential order of the Principal. It was further held in that case that in view of the provisions of section 31 notwithstanding the fact that Km. Madhu Jain had been appointed temporarily, her appointment would be deemed to have been made on probation under section 31(2) of the Act. In our opinion, the principle laid down in that case would apply to the facts of the instant case also notwithstanding the fact that in the instant case the Selection Committee had made by going out of its way a recommendation for the petitioner's appointment on a temporary post upto 30th June, 1978. It was urged for the respondents that since the petitioner on being offered a temporary appointment notwithstanding the fact that the vacancy to be filled in was substantive and the Selection Committee had taken place on the basis of an advertisement for a substantive post had accepted the same she was estopped from asserting that her appointment should be deemed to be an appointment on a substantive basis. Similar argument was also raised in Kumar Madhu Jain's case (supra) but was repelled and relying on the said decision we are not inclined to accept this submission. It was then urged for the respondents that as is apparent from sub-section (8)(b) of section 31 of the Act it was open to the Management of the College Committee. Accor ding to counsel, had the Managing Committee known that the petitioner had been selected for permanent appointment by the Selection Committee, it may have disagreed with the recommendation and consequently the petitioner may not be treated to have been appointed on probation under section 31(2) of the Act. We find no substance in this submission either. It is apparent from the decision in the case of Km. Madhu Jain (supra) that if the Managing Committee did not have any objection in regard to the person selected for appointment it could not convert a substantive appointment into temporary one. The position may be different if the Managing Committee has any objection in making an appointment of the person selected. In the instant case too there has been no suggestion on the part of the Managing Committee of the College that it has any objection against the appointment of the petitioner in any capacity. Indeed the petitioner had even on an earlier occasion been appointed temporarily as a lecturer in Zoology in the same College. Insofar as her work and conduct are concerned reference may be made to annexure "1-A" to the writ petition which is a copy of the certificate granted by Dr. M.M. Goil, professor of Head of post-Graduate Department of Zoology, Bareilly College, Bareilly on 24th July, 1978 it reads; "This is to certify that Km. Ranjana Saxena, M.Sc., is a very dutiful teacher of my Department. She is very regular in taking the classes and she has a great acumen of controlling the students of her classes. She takes keen interest in all the academic and extra-curricular activities. She has a great insight in research and is helping the students in their research work. Being one of the best teachers of my Department, she is very popular among the students. She bears an excellent moral character. I wish her every success in life." Lastly it was urged that the petitioner had an alternative remedy of making a representation to the Chancellor under section 68 of the Act. In our opinion there is no substance in this submission either, inasmuch as in the instant case the grievance of the petitioner is mainly against that part of the resolution of the Selection Committee whereby a recommendation was made for appointing the petitioner temporarily upto 30th June, 1978 and the Selection Committee of an affiliated college is not an authority within the meaning of section 19 of the Act and no other provision has been brought to our notice in pursuance of which the said Selection Committee may be treated as an authority so that a representation against a part of its resolution could be made to the Chancellor under section 68 of the Act. In the case of Km. Madhu Jain (supra) it was held: "The petitioner was selected for a permanent post of lecturer, and, therefore, her appointment will be deemed to be on probation for one year and the same probationary period will be deemed to have been extended upto 30th June, 1978 and the order of the Principal asking the petitioner to hand over charge on 13th May, 1978 are all illegal and must be quashed." Relying on the aforesaid observation it is held that in the instant case too the appointment of the petitioner will be deemed to be on probation for one year and will be deemed to have been extended thereafter. In the result the writ petition succeeds and is allowed and the resolution of the Selection Committee dated 26th September, 1977 to the extent that it recommended the appointment of the petitioner temporarily upto 30th June, 1978 only as also the consequential orders passed by the Managing Committee and the Vice-Chancellor insofar as they fixed the period of her appointment upto 31st October, 1978 only are quashed. In pursuance of an interim order passed in the writ petition the respondents were restrained from interfering with the petitioner's functioning as a lecturer of Zoology in the Bareilly College, Bareilly.. As held above she will be deemed to be continuing in service on probation. The Managing Committee of the College, respondent No. 2 will now take necessary steps in the matter of her final absorption on the substantive post of lecturer of Zoology in the College in accordance with law. Parties will bear their own costs.