M.L.Bhat, J. - (1.) THE two writ petitions which are being decided by this judgment involve common question of law and facts. Writ Petition No. 1889S of 1989 (Anil Kumar Pandey v. Vice-Chancellor) has been filed on the following facts
(2.) PETITIONER says that a post of lecturer in Organic chemistry had fallen vacant in Hindu College, Moradabad which is a duly recognised institution and is governed by the provisions of the U. P. Higher Education Service Commission Act. The committee of management of the College wanted to fill up the vacancy on ad-hoc basis under section 16 of the Commission Act after obtaining permission from the director of Higher Education. The post was duly advertised as required under the law. The petitioner along with 12 candidates applied for the said post in pursuance of the advertisement notice. After interviewing the candidates, the petitioner was selected as the best candidate and was placed at serial no. 1 in the list of the selected candidates, by the selection committee. Copy of the recommendation of the selection committee is annexure-1 to the writ petition. The recommendation of the selection committee was approved by the Committee of Management by its resolution dated 28-12-188. Copy of the said resolution is annexure-2 to the writ petition. The Principal of the College appears to have sent the papers with regard to the selection of the petitioner to the Vice Chancellor which is reflected by a copy of the letter contained in Annexure-3. The petitioner has said that he has joined the post and started functioning. The Vice Chancellor did not grant approval but informed verbally to the petitioner that his appointment was cancelled. The petitioner, thereafter, made a representation to the Chancellor. The petitioner also made a representation to the principal and Registrar of the University for issuing appointment order in his favour, copy of the request letters are contained in Annexures-4 and 5 to the writ Petition. The Vice Chancellor's disapproval has resulted in non payment of salary to the petitioner. It is stated that University authority was interested in the appointment of Sri Raj Kumar Jain who was placed in the selection list at serial no. 2, below the petitioner. The order of the Vice Chancellor, withholding the approval of the petitioner's appointment is challenged as being without jurisdiction and bad in law. The Vice Chancellor has no say in the matter, therefore his disapproval would not effect the petitioner's right to continue in service and get salary. The petitioner's salary has been illegally withheld under the invalid and unjust order which is totally arbitrary. The petitioner seeks quashment of Vice Chancellor's order whereby he has not approved his appointment which was communicated to the petitioner on 17-3-1989. The petitioner seeks mandamus for payment of salary. The reply has been filed by the respondents through its assistant Irshad Husain. It is stated that the petitioner did not have the requisite qualification under the Statute for being selected as lecturer. He have not secured 50 percent marks in Intermediate and 55 percent marks in average. A letter was addressed to the Principal on 23-1-1989 in reply to his letter dated 2-1-1989. Copy of that letter is placed as Annexure-1 to the counter. It is stated that the Vice Chancellor did not approve the appointment of the petitioner because the petitioner has no qualification for being appointed as lecturer. It is submitted that the petitioner had filed a representation to the Chancellor, copy where of is Annexure-2 to the counter. In pursuance of the said representation, notice has been issued to the Vice Chancellor and a reply also is filed by the Vice Chancellor. Copy of the notice is Annexure-3 to the counter. A supplementary representation has also been filed by the petitioner on 16-6-1989. Copy of Chancellor's letter addressed to the Vice Chancellor is Annexure-4 to the counter and copy of the reply filed by the Vice Chancellor to the supplementary representation is Annexure-5 to the counter. On 17-1-1990 another supplementry representation was received by the University and the same was forwarded to the Vice Chancellor vide Annexure-6. It is contended that approval for appointment of Sri Raj Kumar Jain was sought from the Vice Chancellor by a letter, copy whereof is Annexure-7 to the counter. The Vice Chancellor granted approval which is contained in Annexure-8 to the counter. The approval of Sri Raj Kumar Jain was only for three months after which no approval was granted. A letter of the University to the Principal is contained in Annexure-9 to the counter. It is asserted that power of the Vice Chancellor to grant* approval in the matter of adhoc appointment is not taken away by any law. The management is said to have no power to make appointment on adhoc basis of a person who is not qualified under the Statute for being appointed as lecturer. The selection committee did not relax the qualification of the petitioner. In this regard the communication dated 4-3-1989 is contained in Annexure-10 to the counter. The Principal also wrote a letter to the University for approval to the candidature of Sri Raj Kumar Jain and sent the proceeding of the management to the University. The letters of the Principal to the University are contained in Annexures-11 and 12 to the counter. The other Annexures are letters exchanged between the Principal and University after the filing of this writ petition.
(3.) A rejoinder-affidavit has been filed by the petitioner. In the rejoinder-affidavit, the petitioner submitted that he obtained a doctrate degree, therefore, it is not necessary for him to have a good academic record. The selection committee after considering the case of the petitioner found him suitable for the post, therefore, his name was recommended. The managing committee accepted the recommendation and now it cannot turn down the recommendation and say that the selection made by the selection committee is bad. The petitioner says that he joined the duties on 2-1-1989 in pursuance of the direction given by the committee of management. It it asserted that he was continuously functioning on the post in question and has produced Annexures R.A. 2, 3 and 4, photo state copies of peon book and the attendance register. It is stated that adhoc appointment was to be made under section 16 of the U. P. Higher Education Services Commission Act and not under the State Universities Act or the Statute of the Rohilkhand University. The petitioner stated that he had worked in the institution in question for more than three years, therefore, he is entitled to draw the salary. The petitioner states that the University was interested in the appointment of Sfi Raj Kumar Jain, therefore, he was appointed. However, his appointment was to continue only till June, 1989. The Vice Chancellor's order impugned in this writ petitioner is said to be without juisdiction. The petitioner was not given any notice about the disapproval of his appointment by the Vice Chancellor. A supplementry counter affidavit is filed by the University in reply to the rejoinder-affidavit. The petitioner's assertion that because he was holding a Ph.D. degree, therefore, he was not required to have good academic record, is denied. The managing committee is said to have recommended the name of the petitioner without examining the Statute of the Universities. It is denied that the petitioner was given any appointment letter. About Annexures RA 2, 3 and 4 it is stated that they are forged. According to the principal's certificate, the petitioner was never given time table in chemistry department. University having any interest in the appointment of Sri Raj Kumar Jain is denied. Vice Chancellor's authority to accord approval or refuse approval is asserted.;