R.M. Sahai, J. - (1.) VACANCY for post of Principal in Amar Singh College, Luckhawati, District Bulandshahr, a Post -Graduate degree college, run by the State Government arose due to retirement of the Principal for which an advertisement was issued in January, 1978. Applications were made by various candidates including petitioner, the senior -most Lecturer of the College and Officiating Principal. Sri Rajendra, Lecturer is Statistics and Dr. P.S. Malik, an outsider. In December, 1978 the Selection Committee recommended names of Dr. P.S. Malik and Sri Rajendra as the two best candidates out of all who presented themselves for interview. It was further pointed out that Dr. Malik had an edge over Sri Rajendra, but as Dr. Malik was insisting on a start of Rs. 1550/ - per month as his salary and was not ready to accept anything less, the name of Sri Rajendra was recommended for the past of Principal. The Committee of Management did not agree with the recommendation of the Selection Committee and recommended the name of Dr. Malik for being appointed as Principal of the college. When this came up before the Vice Chancellor, he did not agree with the Committee of Management and approved the appointment of Sri Rajendra, who had been recommended by the Selection Committee. Against order of the Vice Chancellor the petitioner and Dr. Malik both made representations to the Chancellor. While these representations were pending two suits were filed, one by Dr. Brijendra Singh, on behalf of Management and the other by petitioner in the Court of Civil Judge. Petitioner sought declaration that the constitution of the selection committee was void. In October, 1979 the Chancellor rejected the representation. The Administrator of the college filed a writ petition for prohibition that the two suits spending in the Civil Court may be stayed and the proceedings may be quashed. Another petition was filed by petitioner for quashing recommendation of the Selection Committee. Vice -Chancellor and the Chancellor. A third petition was filed by Dr. Malik for quashing the orders passed by Vice -Chancellor and the Chancellor. All these petitions were decided by a Division Bench of this Court and the decision is reported in 1981 U.P. Local Bodies and Educational, Cases, 214: The order passed by the Chancellor was quashed. It was held that Sri Rajendra was not qualified to be appointed as Principal as Mathematics and Statistics which were taught by him were not one of the subjects taught in the college within the meaning of Statute 11. 14(1) of First Statutes of University of Meerut. Against the decision of the Division Bench Sri Rajendra filed appeal in the Supreme Court which was dismissed as withdrawn in March, 1980. The Hon'ble Court, however, while dismissing the appeal observed' We are satisfied that the High Court rightly quashed the appointment order of the Vice -Chancellor because the Selection Committee had infact found respondent No. 4 to be more suitable for the post of Principalship. So far as the opinion of the High Court on the question of eligibility of petitioner and the interpretation expression 'subject taught' are concerned, they are left open. In consequence of the order passed by the Supreme Court the Vice -Chancellor appointed Dr. Malik as the Principal Against this appointment petitioner and Sri Rajendra again made representations to the Chancellor which was accepted in October, 1981. The Chancellor held that Dr. Malik was as much disqualified as Sri Rajendra. He, therefore, passed the following order: In view of the above I hereby allow the said representation and set aside the impugned decision dated 26th December, 1980 of the Vice Chancellor giving approval to the appointment of Dr. P.S. Malik and quash the appointment of Dr. Malik and direct that post be filled up according to law. Against order of the Chancellor Dr. Malik approached this Court again by way of writ petition which was dismissed by the Division Bench in April, 1982 Against the order passed by Division Bench Dr. Malik went to Supreme Court without any success. In July, 1982 Sri Rajendra made a representation to the Vice -Chancellor for reconsidering his case in view of the earlier judgment given by Supreme Court where the question of his eligibility and interpretation of the expression 'subject taught' was left open. The Vice Chancellor by his order dated 16th July, 1982 allowed his representation and held that Sri Rajendra who was M. Sc. in Statistics and Mathematics and M.A. in Economics was qualified to be appointed as Principal of the College as Mathematics and Statistics were taught in the Agronomy, which was one of the subjects in which the college imparted education. It is against this order that petitioner has come to this Court. At the outset a preliminary objection was raised on behalf of Sri Rajendra that the petition was not maintainable in view of the alternative remedy available to petitioner for approaching the Chancellor under Section 68 of the U.P. State Universities Act, 1973. Reliance was placed on Managing Committee, R.P. Degree College v. Vice Chancellor, Kanpur University,, 1980 U.P. L.B. & E.C. 270 and Dr. Data Ram Sharma v. Vice Chancellor,, 1982 U.P. L.B. & E.C. 144 and Dr. Sri Ravindra Kumar Mittal v. Vice Chancellor, Meerut University, 1983 U.P. L.B. & E.C. 99. It was urged that in Data Ram's case, (Supra) it was held that this petition could not be entertained even if the petition had been admitted and the limitation for filing references under section 68 had expired. Learned counsel urged that it having been held in R.P. Degree College, case that the provision was mandatory, the petition was liable to be dismissed, On the other hand learned counsel for petitioner relied on Deep Kumar Shukla and another v. Allahabad University,, 1984 U.P. L.B. & E.C. 293 and Girraj Kishan v. I.I.T. Kanpur and others,, 1983 U.P. L.B. & E.C. 545 and Ram Singh and Madu Jain v. Chancellor Rohilkhand University,, 1980 U.P. L.B. & E.C. 331 and Hirday Narain v. I.T.O. : 1971 S.C. 33. Ram and Shyam Company v. State of Haryana, : III S.C.C. 267 and Dr. Shyam Narain Pandey v. Vice Chancellor, Gorakhpur University,, 1985 U.P. L.B. E.C. 99.
(2.) FROM a perusal of these decisions one aspect which appears to be well settled and on which there can be no controversy is that where the order is void or without jurisdiction then the bar of alternative remedy should not be strictly applied. Exhaustion of departmental or alternative remedy is the rule but if exigency of the situation demands and availing of the remedy may defeat the relief which is being sought, the jurisdiction of this Court can be invoked and it would be unfair and unjust in such cases to dismiss the petition specially after lapse of three years on the ground of alternative remedy. Post of Principal in the college is lying vacant for last eight years Litigation has been going on between officiating Principal and recommendees both before the Chancellor, this Court and Supreme Court. If after three years since when the petition was admitted the petitioner is directed to approach the Chancellor it would result in grave injustice and shall delay the appointment of a regular Principal further. The preliminary objection in the circumstances is over -ruled. Submissions were advanced regarding construction of expression one 'subject taught in the college'. Learned counsel for Sri Rajendra relied on a definition of 'subject' in the Statutes of Meerut University. It was, however, pointed out by learned counsel for petitioner that this definition has teen deleted from the Statutes which was amended after coming into force of Act 1973, therefore, no assistance could be derived from it. Apart from i, it does not appear necessary to decide this controversy for the reasons stated hereinafter.
(3.) IT is not disputed that the Division Bench of this Court did not find Sri Rajendra to be qualified to be appointed as Principal. However, the Supreme Court did not consider it necessary to go into this aspect as it was of opinion that the Vice Chancellor did not act properly in recommending Sri Rajendra as the selection Committee had found Dr. Malik to be more suitable. The Supreme Court, therefore, put its seal of approval on the decision given by this Court so far as Sri Rejendra was concerned, when it held that the High Court rightly quashed the appointment order of the Vice Chancellor. The observation of the Supreme Court that eligibility of petitioner and interpretation of expression 'subject taught' were left open did not result in nullifying the order passed by this Court. Such construction would result in destroying rule of finality. It is well established that orders passed even at different stages of the proceedings operate as res -judicata. The only effect of the observation was that if any question arose in future about the construction of expression 'subject taught' it could be gone into. But it did not mean that decision of this Court was set aside. The only benefit to petitioner of Supreme Court order was that if fresh advertisement was issued he could apply again subject to decision of the expression "subject taught". In any case after decision of Division Bench of this Court Dr. Malik was recommended for appointment as Principal but the Chancellor did not accept the recommendation because he suffered from the same disability as Sri Rajendra. And this was affirmed by Supreme Court - Whether the reasoning given by Chancellor is correct or not but the fact remains that after reaching this conclusion the Chancellor directed the Selection Committee to fill up the vacancy in accordance with law. The argument of the learned counsel for opposite party that this did not mean fresh selection cannot be accepted. It having been clearly found by the Chancellor that Dr. Rajendra and Dr. Malik both being disqualified to be appointed as Principal the recommendation made by the selection committee became inoperative and, therefore, there was no option but to direct fresh selection. How could the Vice Chancellor in teeth of this direction by the Chancellor reopen the matter and make the recommendation in favour of Sri Rajendra is amazing. The claim of Sri Rajendra that as Dr. Malik had not been found to be qualified, therefore, his case may be reconsidered was to say the least misconceived. By non acceptance of Dr. Malik's recommendation the recommendation of the committee in favour of Sri Rajendra who had already been found to be disqualified did not revive. In any case, once the Chancellor directed the Vice Chancellor to hold selection in accordance with law it was not open to him to go behind it and reopen the matter. The argument of the learned counsel for opposite party that the order was passed by the Chancellor as he was not aware of the Supreme Court decision as explained in the counter -affidavit filed on his behalf does not improve the matter for the simple reason that the Vice Chancellor while making the recommendation in favour of Sri Rajendra has referred the Supreme Court's decision. The Chancellor had allowed the recommendation against this order. To say, therefore, that he was not aware of the Supreme Court's decision is not correct. For the reasons stated above this petition succeeds and is allowed. The order dated 16th July, 1982 passed by the Vice -Chancellor is quashed. The Vice Chancellor Meerut University, Meerut and the Administrator of the College are further directed to hold fresh selection for the post of Principal in pursuance of the direction given by Chancellor on 3rd October, 1981. The selection should be done at an early date if possible within two months as the post of Principal is vacant for the last 8 years - Parties shall, however, bear their own costs.;