BHARTI KRISHNA Vs. VICE CHANCELLOR BANARAS HINDU UNIVERSITY

JUDGEMENT

(1.) An advertisement was issued on 13th October, 1995 by Banaras Hindu University for filling up of vacancies in different Posts in the Central Hindu Girls School including the post of Assistant Lecturer in English. Many others as well as the petitioner and respondent No. 5 had applied for the post pursuant to the said advertisement. At the material point of time, in the absence of the principal, the respondent No. 4 was acting as principal of the Central Hindu Girls school as officiating principal. She was inducted in the Selection committee as one of the members in place of the principal. The selection committee had recommended the name of the respondent No. 5 for appointment in the post for which the petitioner had contested. By a resolution dated 20/21st July 1996, the Executive council had appointed the respondent No. 5 in the said post. This appointment has since been challenged by the petitioner in this writ petition.

(2.) Mr. K. M. L. Hajela, learned counsel for the petitioner contends that the constitution of the Selection Committee was invalid in view of Ordinance 5 Clause-(VI)(C) Chapter-VI of the Banaras Hindu University Calendar providing for the Ordinance governing the Management of Institution under the School Board earned under Statute 41(2) of the Banaras Hindu University Statute. In as the said clause provides for constitution of the Selection Committee for selection of principal and teachers. The Selection Committee for teachers consists of (1) Vice-Chairman, (2) Dean, Faculty of education, (3) Two members nominated by the chairman of the School Board, (4) Registrar, B.H.U. (5) Principal, Kendriya Vidyalaya, B.H.U. Campus and (6) principal of the concerned Institution. According to him, the word 'Principal' does not include officiating principal. The expression 'Principal' is meant for a principal who has been appointed substantively. Thus, according to him the inclusion of the officiating principal has vitiated the constitution of the selection committee. The officiating principal is incompetent on account of her not being appointed in substantive capacity, constitution of the Selection committee itself was vitiated and therefore, the Selection Committee could not have recommended the name of the respondent No. 5 such recommendation was, therefore, without jurisdiction. Thus, the selection was void and without authority. In support of his contention, he relies upon the decision in the case of S. K. Lamba v. State of U.P., (1993) 3 UPLBEC 1624), by a Division Bench. He then contends that in view of Sub-section 6 of Section 18 of the Banaras Hindu University Act, 1915 every Ordinance is to be placed before the Visitor who may disallow of remit the same to the Executive council. According to him, in the present case, there was nothing to show that the Ordinance by which the Executive Council had appointed the respondent No. 5 purported to have been amended by a resolution dated 20/21st July, 1996 had ever been placed before the visitor. Therefore, according to him, the reliance placed by Mr. V. K. Upadhyay on the said ordinance, to defend the claim of the petitioner, is wholly misplaced, since in the absence of placement of the ordinance before the visitor, the same had never come into existence and could not have been enforceable. He contends that the purported amendment of the Clause (VI)(c) of Ordinance 5 on the basis whereof the appointment of the respondent No. 5 was issued, had never come into life and as such the Executive Council could not assume jurisdiction to appoint respondent No. 5 is wholly without jurisdiction and void. According to him, unless there is an approval by the visitor which is implied in Sub-section (6) of Section 18, an Ordinance does not become effective and enforceable. In support of his contention, he had relied upon the decision in the case of Inamdars of Sulhnagar Colony and Ors. v. Government of Andhra Pradesh and Anr., AIR 1961 Andhra Pradesh 523, (V. 48 C 150). He also contends that the power conferred by the statute upon one authority cannot be exercised by another authority. In such cases, such exercise would be void-ab-initio. In support of the above contention, he relied on the decision in the case of Anirudhsinhji Karansinhji Jadeja and Anr. v. The State of Gujarat, JT 1995 (6) SC 146. According to him, it was the Board which was competent to appoint a teacher in the Central School. The Executive Council could not have assumed jurisdiction on the basis of the Resolution dated 20/21st July 1996. on the very date on which the appointment was also made. According to him, the amendment if had been resolved on 20/21st July, 1996 even if, assuming for argument's sake that it had come into force then no resolution to appoint could have been passed on the same date until the amendment has been enforced formally. Therefore, on 20/21st July, 1996 on which the amendment was resolved, the Executive council did not have nor could have acquired into itself the right to appoint which is otherwise vested in the Board. On these grounds, he prays that the writ petition be allowed.

(3.) Mr. V. K. Upadhyay assisted by Mr. Pankaj Naqvi, leaarned Counsel for the respondents on the other hand took a preliminary objection to the extent that under Sub-section-(7) of Section 5 of the Act. there is adequate alternative remedy available to the petitioner by means where of a reference to the visitor is imperative. According to him, the appointment was made in a proceeding of the University Undertaken by the Executive council. From various provisions of the Act and the ordinances and Statutes, he points out that it is the Executive council which is in-charge of the management of the University itself and a proceeding undertaken by the Executive council is a proceeding of the University and as such is amenable to Sub-section (7) of Section 5. Therefore, the petitioner could not have maintained this writ petition before this court. On this ground, according to him, the writ petition cannot be entertained by this Court and should be dismissed as not maintainable.