SHANKER DAYAL CHOURISHI Vs. ADMINISTRATOR MUNICIPAL COUNCIL
LAWS(MPH)-1967-4-11
HIGH COURT OF MADHYA PRADESH
Decided on April 25,1967

SHANKER DAYAL CHOURISHI Appellant
VERSUS
ADMINISTRATOR, MUNICIPAL COUNCIL Respondents

JUDGEMENT

BHAVE J - (1.) THE petitioner was appointed as a Principal of the Science, Arts and Commerce College, Dhamtari, run by the Municipal Council, Dhamtari, by the Administrator of the Council (respondent No. 1) by his order dated 1st September 1966. THE appointment of the petitioner, to start with, was until the close of the College Session, that is, 30-4-1967, and was temporary. THE other terms and conditions of the appointment were: "(1) His appointment will be temporary subject to the approval of the State Government until the close of the college session i.e. 30-4-1967. (2) He will be considered for probation thereafter. (3) He will be given two advance increments as he is Ph. D. and his basic pay will be fixed at Rs. 610 P. M. (4) His services are liable to termination without assigning any cause with one month's previous notice. (5) He will have to give one month's notice to the Council in case he wishes to relinquish his appointment at any time after he joins his duties." THE first respondent served on the petitioner a notice dated 5th December 1966 (Annexure D) by which in accordance with the terms of the appointment (clause 4) the services of the petitioner were terminated with a month's notice. This notice was, however, not acted upon and a fresh notice dated 7th March 1967 (Annexure G) was served by the first respondent on the petitioner by which he was informed that his services were terminated as no longer required with effect from the fore-noon of 1st April 1967. By this petition under Article 226 of the Constitution, the petitioner seeks a writ of certiorari for quashing the notice dated 7th March 1967 issued by the first respondent. THE petitioner also seeks a writ of mandamus commanding the respondents to restrain from giving effect to the notice dated 7th March 1967 in any manner whatsoever.
(2.) THE petitioner holds a Degree of Doctor of Philosophy (Ph.D.) in Hindi. It, however, appears that he had passed his B. A. and M. A. Examinations in Third Division. THE Dhamtari College is affiliated to the Ravishankar University, Raipur. THE Administrator informed the University Authorities about the selection and appointment of the petitioner as a Principal and sought approval of the University. THE Executive Council of the University, however, did not approve the appointment of the petitioner on the grounds that the petitioner had not the requisite experience of 7 years' teaching of Degree Classes and that he did not possess the Master's Degree in Second Division. It appears that the Administrator sought recognition of the appointment at least for a temporary period, that is, up to the end of the session THE Executive Council of the University did not accede to this request as well [See Annexures B and C]. In these circumstances, the notice dated 5th December 1966 was issued by the first respondent. It further appears that the petitioner took initiative in the matter and filed representations against the decision of the Executive Council before the Vice-Chancellor and the Chancellor of the University, and that appears to be the reason why the notice dated 5th December 1966 was not enforced by the first respondent. It appears that the representations sent by the petitioner were not forwarded to the Vice-Chancellor and the Chancellor for their consideration but they were put up before the Executive Council on 3rd January 1967 and the Executive Council expressed its inability to sanction approval to the appointment of the petitioner and the petitioner was accordingly informed by Memo dated 16th January 1967. After this it appears that the College Authorities took steps to invite fresh applications and after making a selection of another Principal served the notice dated 7 th March 1967 on the petitioner which is under challenge before us. Shri Adhikari, learned counsel for the petitioner, urged before us that though under the terms of the order of appointment the appointment of the petitioner was temporary and was terminable by one month's notice, the action taken by the Administrator was not voluntary but the Administrator was coerced into taking that action because of the unwarranted and illegal decision of the University Authorities. Shri Adhikari also urged that, in any case, the petitioner was entitled to continue up to 30 th April 1967 and clause (4) could come into operation only after that date. It was also urged that the impugned notice was invalid inasmuch as it was not of the duration of one month. Shri Jakatdar, learned counsel for the first respondent, urged that the petition under Article 226 of the Constitution was not tenable inasmuch as no breach of any statute or rules was committed by the Administrator in issuing the notice; at best, it was a breach of the contract, and no relief could be sought in these proceedings. Shri Jakatdar also urged that it was wrong to say that the Administrator was coerced into issuing the notice because of illegal decision of the University Authorities Shri Dharmadhikari, learned counsel for the University, urged that the Executive Council acted within its authority and that the petitioner was not entitled to any relief.
(3.) UNDER section 4 (7) of the Ravishankar University Act, 1963, the University has power to admit to its privileges colleges not maintained by the University and to withdraw all or any of those privileges in the manner prescribed in the Statutes or Ordinances. UNDER clause (10) of that section the University has power to recognise teachers as qualified to give instructions in colleges. UNDER section 2 (the definition clause), a "Principal" is defined to mean "the head of a college" while "Professors, Readers and Assistant Professors" are defined to mean "teachers of the University who have been appointed or recognised by the Executive Council as Professors, Readers and Assistant Professors respectively". "Teachers of the University" include all persons who, with the approval of the Academic Council, impart instructions or guide research in the University or in any college. Shri Adhikari, therefore, urged that there is a clear distinction between a 'Principal' on the one hand and 'Professors, Readers and Assistant Professors' and 'Teachers' on the other. The 'Principal' is merely the head of the college and he need not be a teacher. He, therefore, urged that no power has been conferred on the University to recognise a Principal or give approval to his appointment and that the power under clause (10) of section 4 is only confined to giving recognition to teachers as qualified to give instructions in colleges. Shri Adhikari, therefore, urged that the Administrator was in error in asking for approval of the appointment of the Principal from the University Authorities and that the University Authorities were equally in error in usurping that jurisdiction. It is no doubt true that theoretically a Principal may be only an administrative head of the college and may have nothing to do with imparting instructions. It does not, however, appear that the petitioner was appointed as an administrative head only. This is clear from his application in which he has clearly stated that he has not only obtained his Ph. D. in Hindi but that he is also doing his D. Litt. in that subject. He has also stated that he has 18 years' teaching experience and has administrative experience of Degree Colleges for six years. The advertisement inviting applications in response to which the petitioner submitted his application (Annexure R-1) is not on record. But it is difficult to assume that the petitioner was appointed merely as an administrative head and was not to impart any instructions Apart from this, we are of the view that though a 'Principal' has been defined separately as 'the head of a college', it does not follow from the provision that the Principal is also not a teacher imparting instructions. We are, therefore, not inclined to agree with Shri Adhikari that the University Authorities had no power to grant or withhold recognition to the appointment of a Principal on the ground that he did not satisfy the requisite standards. Shri Adhikari further urged that even on the assumption that a Principal is also responsible for imparting instructions, the Executive Council was not justified in refusing approval to the appointment of the petitioner as a Principal. Shri Adhikari drew our attention to Additional Statute No. 2 which prescribes the qualifications of teachers in colleges. It prescribes the qualifications of Professors, Readers, Assistant Professors and Lecturers. In the case of Professors, Readers and Assistant Professors, a first class Master's degree in the subject in which he is to be appointed, with varied periods of experience, is prescribed as the minimum qualification; while in the case of a Lecturer, the minimum qualification is a second class Master's degree; but a person holding a third class Master's degree with a good previous academic career and Ph. D. may be appointed as a Lecturer with the approval of the Academic Council. In this Additional Statute the Principal nowhere figures, that is to say, the statute does not prescribe whether he should have the qualifications of a Professor or a Reader or an Assistant Professor or a Lecturer. Statute No. 22, clause (1), authorises the Executive Council to admit to the privileges of the University colleges and other institutions subject to the provisions of the Act and other conditions laid down in the statute. Clause (3) of that statute provides that the appointment of the Principal and other members of the teaching staff shall be made after advertisement. Sub-clause (ii) further provides that the Principal of a college should possess the qualification and be in receipt of salary not lower than that laid down by the State Government for Principals of the Government Colleges or corresponding status, and sub-clause (iii) provides that the appointment of the Principal in such college shall be made by the Governing Body of a college after the approval of the Executive Council is obtained. This is the only provision which prescribes the qualifications of the Principal and confers authority on the Executive Council to accord approval to such an appointment. But here again the reference is made to the qualifications prescribed by the State Government for appointment of Principals of the Government colleges. What those qualifications are, is not made clear anywhere in the Act or the Statutes; nor was it brought to our notice by the respondents. Under the circumstances, Shri Adhikari urged that the decision of the Executive Council of not recognising the appointment of the petitioner for the reason that he had not seven years' teaching experience of Degree Classes or that he did not possess the Master's Degree in Second Division was arbitrary and without any justification whatsoever.;


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