K.N. Singh, J. - (1.) JANTA Mahavidyalaya, Ajitmal, district Etawah, is a Degree College affiliated to the Kanpur University. Petitioner and some other persons were selected for appointment as Lecturers by a Selection Committee constituted under the Kanpur-Meerut University's Act, 1965. The Management of the College forwarded papers to the Vice-Chancellor for obtaining his approval as contemplated by sub-section (4) of Section 26 of the Act. The Registrar by his letter dated February 16, 1971, informed the principal of the Mahavidyalaya that the Vice-Chancellor disapproved the selection made by the Selection Committee and the appointments made there under on the ground that a member of the Selection Committee was not given intimation of the date of the meeting of the Committee. The Vice-Chancellor directed the management to hold fresh selection in accordance with the provisions of the Act and the statutes framed there under. Thereafter the management by its letter dated March 20, 1971, (Annexure VI to the petition) informed the petitioner that since the petitioner's appointment was disapproved his services would be no longer required after April 30, 1971. The petitioner as well as the 'Management both made representation to the Vice-Chancellor for recalling the order of disapproval. The Vice-Chancellor by his letter dated April 26, 1971, informed the principal of the Vidyalaya that the petitioner's appointment was disapproved as he had no good academic record and also on the ground of defective service of notice on a member of the Selection Committee. Aggrieved, the petitioner approached this Court challenging the order of the Vice-Chancellor disapproving the petitioner's appointment.
(2.) LEARNED counsel for the petitioner urged that the Vice-Chancellor had no jurisdiction to disapprove the petitioner's appointment as he had not obtained the concurrence of the Executive Committee before disapproving the petitioner's appointment. Section 26 of the Act contains provision for appointment of teachers in the University as well as in the affiliated Colleges. Sub-section (4) of Section 26 lays down that no teacher shall be appointed substantively or temporarily or in officiating capacity lasting for more than six months unless the appointment is reported by the Management to the Vice-Chancellor within fifteen days from the date of appointment along with all connected papers. The continuance of the appointment shall be subject to the approval of the Vice-Chancellor who may either approve the appointment or disapprove the same with the concurrence of the Executive Council of the University. In case the appointment is disapproved the services of the teacher shall be terminated as soon as may be possible. It is significant to note that the Vice-Chancellor need not consult any one in approving the appointment but if he is of the opinion- that the appointment should be disapproved he cannot exercise that power un less he obtains concurrence of the Executive Council of the University. The expression concurrence' indicates that the Vice-Chancellor's proposal to disapprove the appointment of the teacher should be considered by the Executive Council and it should agree with that proposal. In case the Executive Council does not agree with the proposal of disapproval it would not be open to the Vice-Chancellor to disapprove the appointment of the teacher. Concurrence means prior consent, it is quite different with Consultation. The power of Vice-Chancellor to disapprove any appointment is circumscribed by the condition of obtaining concurrence of the Executive Council. If concurrence is not obtained the order of disapproval issued by the Vice-Chancellor would be in contravention of sub-section (4) of Section 26 of the Act. The legislature intended that in case of disapproval the Vice-Chancellor should not be the final authority, instead he must obtain the concurrence of the Executive Council which normally consists of persons having high academic qualifications. The legislature considered it necessary to place this restriction in order to avoid arbitrary exercise of power. This provision its mandatory in nature, its non-compliance would vitiate the order of disapproval.
(3.) IT is admitted on behalf of the University that the term of the Executive Council of the Kanpur University expired on March 9, 1971, thereafter it was reconstituted on May 6, 1971. The Executive Council of the University was not functioning during the period between March 10, 1971, to May 6, 1971. On the own assertion of the University as contained in paragraph 28 of the affidavit of the Registrar Sri S.B.B.B. Singh, it is clear that the Executive Council of the University was in existence on February 26, 1971, when the principal of Janta Maha Vidyalaya informed the petitioner that his appointment had been disapproved by the Vice-Chancellor. The representations made by the petitioner as well as by the Management were rejected by the Vice-Chancellor and intimation to that effect was given to the principal of the College by his letter dated April 26, 1971. There is no dispute that on April 26, 1971 the Executive Council was not functioning, but that does not remove the illegality committed by the Vice-Chancellor in disapproving the petitioner's appointment without obtaining the concurrence of the Executive Council. On, the admitted facts the petitioner's appointment was disapproved before February 16, 1971. There is further no dispute that the concurrence of the University's Executive Council was not obtained before disapproving the petitioner's appointment. The contention that concurrence was not obtained because the Executive Council was not functioning is apparently incorrect. The averments contained in the counter-affidavit of the Registrar would show that the Executive Council was in existence till March 6, 1971. Admittedly, the petitioner's appointment as teacher in the college was disapproved by the Vice-Chancellor in February, 1971 and the management issued a letter to the petitioner on March 20, 1971, intimating him that his services would stand terminated with effect from April 30, 1971. The order passed on April 26, 1971, merely rejected the petitioner's representation. In the circumstances the order of the Vice Chancellor was issued in violation of the mandatory provisions of sub-section (4) of Section 26 of the Act.;