K.K.Birla- - (1.) THIS writ petition has been filed for quashing the order of the Chancellor of the Rohil Khand University allowing the reference under sction 68 of the Universities Act prefereed by Km. Chandna Das respondent no. 4.
(2.) IN brief, a post of Lecturer in Zoology in Hindu College Moradabad, {hereinafter referred as the College) as associate College of the Rohil Khand University, fell vacant and an adhoc appointment was to be made under section 16 of the U. P. Higher Education Service Commission Act, 1980 (hereinafter referred as the Act). The post was advertised. Dr. Avinash Chandra, the petitioner and Km. Chandna Das were also candidates for the post. The Selection Committee placed the respondent no 4 at SI. no. 1 and the petitioner at SI. no. 2. According to the petitioner the respondent no. 4 did not fulfill the essential qualification required for appointment as a Lecturer. He made a representation to the Managing Committee of the College. The Managing Committee appointed the petitioner vide order dated 12-10-88. The approval for this appointment was given by the Vice-Chancellor vide order dated 15th October, 1988. Being aggrieved against this order, Km. Chandna Das, respondent no. 4 preferred a reference under section 68 of the Universities Act to the Chancellor. By the impugned order this reference was allowed. The Chancellor set-aside the approval accorded by the Vice-Chancellor in favour of the petitioner and ordered the respondent no. 4 to be appointed on the post. Being aggrieved Dr. Avinash Chandra has filed this petition. The impugned order has been challenged on various grounds. Before entering into the merits of the case the relevant provisions involved in this case may be cited :- Section 16 (1) of the U. P. Universities Act provides that where the management has notified a vacancy to the Commission in accordance with sub-section (2) of section 12, and the Commission fails to recommend the names of suitable candidates in accordance with sub-section (1) of that section within three months from the date of such notification, the management may appoint a teacher on purely adhoc basis from amongst the persons holding qualification prescribed therefore. Section 30 of the Act provides that the provisions of this Act, shall have effect notwithstanding anything to the contrary contained in the Uttar Pradesh State Universities Act, 1973 or the Statutes or Ordinances made thereunder. The relevant portion of the Statutes 10.01 is as under :- "(1) In the case of any college affiliated to the University, the following shall be the minimum qualifications for the post of a Lecturer in the Faculties of Arts, Commerce and Science, namely : (a) a consistently good academic record (that is to say, the overall record of all assessments, throughout the academic career of a candidate) with first or high second class (that is to say, with an aggregate of more than 54 percent marks) Master's degree in the subject concerned or equivalent degree of a foreign University in such subject ; and (b) M. Phil degree or a recognised degree beyond the Master's level or published work indicating the capacity of a candidate or independent research work. (2) if a candidate possessing the qualification specified in sub-clause (b) of clause (1) is not available or is not considered suitable the management of college may, on the recommendation of the Selection Committee, appoint a candidate possessing consistently good academic record on the condition that he will have to attain the qualifications referred to in that sub-clause within a period of five years from the date of his appointment...... The comparative qualifications of the petitioner and respondent no. 4 are given in para 4 of the petition which shows that the percentage of marks obtained by the respondent no. 4 in Intermediate, B.Sc. and M.Sc. was much higher than the marks obtained by the petitioner. However, the petitioner was awarded Ph.D in 1984, had also published research papers in different Indian Journal of the Repute and had a teaching experience of about three and a half years. Km. Chandna Das did not posses M. Phil degree or recognised degree beyond the Master's level. It is contended on behalf of the petitioner that the respondent no. 4 did not possess the minimum qualification required for the post of Lecturer and as such the Selection Committee acted illegally and arbitrarily in placing her at SI. no. 1 and she could have not been given an adhoc appointment; that at the most the recommendation of the Selection Committee recommending the petitioner was illegal and the Managing Committee was fully competent to appoint the petitioner. It is also contended that as the case was covered under section 16 of the Act and not under Section 31 of the Universities Act and it was not necessary to seek" the approval of the Vice-Chancellor, but even the approval was accorded. Lastly it was contended that no reference under section 68 of the Universities Act was maintainable to the Chancellor as the appointment made by the Managing Committee was not covered within the ambit of section 68 of the Universities Act. On the other hand, it is contended on behalf of the respondent no. 4 that the Selection Committee was a statutory body and as such its recommendations were binding and the Managing Committee could not have superseded its recommendation; that under statutes 10.01 (2) the qualification of M-Phil or so could have been attained after wards as well and as such respondent no. 4 had the minimum qualification for appointment and the order of the Chancellor was correct in this regard.
(3.) THE Chancellor in the impugned order was of the opinion that the appointment was made under section 16 of the Act and not under section 31 of the Universities Act and that the provisions of section 31 of the Universities Act will not be applicable in the instant case. He however, relied on statutes 10.01 (2) and was of the opinion that the respondent no. 4 had, therefore, requisite qualification and the recommendation of the Selection Committee should have been accepted. Accordingly he was also of the opinion that there was no occasion for the Managing Committee for sending the papers for approval to the Vice Chancellor under section 31 (8) (b) of the Universities Act and by acting so the Managing Committee acted beyond its statutory jurisdiction. He accordingly, allowed the reference The affidavits have been exchanged between the parties and the writ petition is being disposed of finally at this stage itself. The learned counsel tor the parties have addressed to this Court at length in support of their respective contentions. I have also perused the material on record.;