- (1.) Heard learned counsel for the parties. Four writ petitions, viz., SBCWP No.3451/2001 Fateh Kishan Kapil Vs. JNV University, Jodhpur & Ors, SBCWP No.3704/2001- Anil Pathak Vs. JNV University, Jodhpur & Ors, SBCWP No.4314/2001 Ms. Prabha Bhandari Vs. State of Raj. & Ors, SBCWP No.4021/2002- Dr. AK Gupta Vs. JNV University, Jodhpur and SBCWP No.3933/2001 were clubbed which is apparent from the order dated 20th Nov., 2001 passed in SBCWP No.4314/2001 and all the above writ petitions were heard together by the single bench of this Court. However, all above writ petitions were decided by separate judgments delivered on different dates.
(2.) In brief we would like to give details of the facts of each petition in brief and final decisions given in above writ petitions by the single bench of this Court on different dates which is as under: - 1. SBCWP No.4314/2001 Prabha Bhandari Vs. State of Raj. & Ors., decided on 30.8.2002 (under challenge in SAW No.632/2002) : This writ petition was filed by petitioner Ms. Prabha Bhandari. The above petitioner was aspirant for the promotion from the post of Reader in department of Political Science and Public Administration to the post of Professor under popularly known Career Advancement Scheme and the full name of above scheme is "UGC Regulations 2002 Regarding Qualifications for Appointment and Career Advancement of Teachers in Universities and Colleges" A Scheme given by the University Grant Commission (hereinafter referred to as 'the CAS') by purported exercise of powers conferred by clause (e) and (g) of sub-section (1) of Section 26 read with Section 14 of the University Grant Commission Act, 1956 (hereinafter referred to as the Act of 1956) superseding the regulations issued under University Grant Commission letter No.F1-93/74(CPP) Part (v) dated 13th June, 1983 and letter no.F1-11/87(CPP-II) dated 19th Sept., 1991 and notification no.1-93/74(CP) dated 19th Feb., 1984, 26th Nov., 1985 and No.F3-1/94(PS) dated 24th Dec., 1998. The petitioner before filing this writ petition took chance of her selection and promotion in the said Career Advancement Scheme (CAS) and she also appeared in the interview and before the results of selection could have been declared, preferred this writ petition. The petitioner by this writ petition sought to challenge the process of selection on the grounds that the respondent University did not follow the procedure like the respondent University did start the selection process in the month of Jan., 2001 without there being any orders of implementation, without issuing eligibility list of all the candidates due for promotion under the CAS nor issued seniority list in accordance with the Rules, which was mandatory requirement for initiation of the process for giving promotion to the post concerned under CAS. The petitioner specifically stated in the writ petition that the respondent-University was bound to follow the mandatory guidelines issued by the UGC and the regulations framed by the UGC under Section 26 of the UGC Act were mandatory in nature and, thereafter, alleged that the respondent issued notification dated 7th Sept., 2001 after obtaining approval from the Chancellor vide letter dated 27th August, 2001 making changes in the selection committee was illegal as was violative of provisions contained in the Jai Narain Vyas University, Jodhpur Act, 1962. The petitioner also raised several other pleas which we need not to mention here in detail because of the reason that after referring all the pleas of the above petitioner in detail the learned Single Judge allowed the writ petition of the petitioner and selection for the post of Professor for Political Science Department was quashed on the ground of bias as respondent no.4 Prof. LS Rathore as Vice-Chancellor participated in the selection committee wherein he should not have participated because of the reason that one of the candidate Dr. PS. Bhati was his close relative and the selection committee could have proceeded even in the absence of the respondent no.4. The learned Single Judge, therefore, did not decide any of the issue raised by the petitioner obviously for the reason that the plea of bias alone was found sufficient to quash the selection process. The above judgment delivered by the learned Single Judge dated 20.8.2002 has been challenged by the respondent Jai Narayan Vyas University, Jodhpur by preferring SAW No.632/2002. 2. SBCWP No.3451/2001- Fateh Kishan Kapil Vs. JNV University, Jodhpur & Ors, decided on 20th Sept., 2002 (under challenge in SAW No.663/2002 preferred by JNV University and in SAW No.312/2006 preferred by the writ petitioner Fateh Kishan Kapil: The above petitioner Fateh Kishan Kapil's grievance was that in spite of his eligibility for promotion to the post of Professor he has not been called for interview under the above CAS and four persons junior to him have been called for interview. The petitioner found that Ordinance 317 making a change disadvantageous to the petitioner was not approved by the SENATE of the respondent-University and, therefore, amended Ordinance has not taken shape of law. Even it has not been approved by the Chancellor and the said change is void as well as has been carried without jurisdiction. The petitioner therefore, in addition to declaration that Ordinance 317 be declared void, in alternative, prayed that it may be declared that note appended to Ordinance 317 was not applicable to the Readers who have completed 8 years. The petitioner, therefore, sought relief of cancellation of selection process and prayed that the interviews held be declared illegal and direction be issued to the respondents to make a seniority list after considering the notification dated 14.3.2001 and declare the petitioner as senior to the persons named in the writ petition. The relevant fact is that the petitioner in this writ petition also claimed benefit under the CAS. The learned Single Judge in this writ petition no.3451/2001 of petitioner Fateh Kishan Kapil after taking note of all the pleas taken by the petitioner and the respondents while in the process of finalizing of the judgment noticed that certain provisions of Rajasthan Universities Teachers and Officers (Selection for Appointment) Act, 1974 (hereinafter referred to as 'the Act of 1974') may have the bearing on the question in issue, therefore, decided to give notice to the parties regarding implication of Sections 11 and 12 of the Act of 1974. The learned Single Judge was of the view that as per section 12 (2) of the Act of 1974 there may be possibility that only one promotion was available under the Act of 1974 to the teachers of the University governed by the Act of 1974. The learned Single Judge then placed the matter for further arguments of the counsel of both the parties so that the implication of the provisions of the Act of 1974 can be considered and it appears from the impugned judgment itself that none of the parties submitted any more arguments on this question of law posed by learned Single Judge and, therefore, the learned Single Judge observed that "The implication of these provisions was studied. The parties were asked also about the implication of the amendment. Parties stated that they have understood the implication of the amendment. It was also submitted that nothing in addition to which has already been submitted, is required to be submitted." In the background of above facts, the learned Single Judge proceeded to examine the provisions of the Act of 1974 and amendments made time to time in the Act of 1974 vis-a-vis the CAS and about the authority of U.G.C. Under the U.G.C. Act, 1956. The learned Single Judge thereafter, held that there is no power seen in clause (e) and (g) of Section 26 of the Act of 1956 that authorizes the UGC for providing any promotional avenue and create a cadre in an University. Then the learned Single Judge held that, that being the position, the act of respondents in holding the selection for appointment under CAS cannot be considered to be legal exercise and consequently, there is no legal right in the petitioner which can be enforced and ultimately held that no mandamus can be issued in favour of the petitioner for participating in an illegal activity. The learned Single Judge then held that court cannot issue direction to any statutory authority to do something in violation of statutory provisions after relying upon the judgment of the Hon'ble Supreme Court delivered in the case of Karnataka State Road Transport corporation Vs. Ashrafulla Khan & Ors, 2002 1 JT 113. In view of the above declaration made in the impugned judgment dated 20th Sept., 2002 , the learned Single Judge held that it is not necessary to go into the other questions raised by the petitioner which will be decided in other writ petitions pending adjudication. 3. SBCWP NO.4021/2001- Dr. AK Gupta Vs. State & Ors., decided on 18.12.2002 (under challenge in SAW No.65/2003 JNV University vs. Dr. AK Gupta and in SAW No.153/2003 preferred by Dr. RP Tripathi:- This writ petition was preferred by Dr. AK Gupta who was Asstt. Professor in the subject of Physics as on 1st April, 1985 and was continuing as such and got the senior scale after completion of 5 years and therefore, was aspirant for the promotion under the CAS but amendment made in Ordinance 317 vide notification dated 13th July, 2001 and 7th Sept., 2001 came in his way, therefore, he prayed for quashing all those notifications with specific prayer that those notifications be quashed and set aside being ultra vires the regulations framed by the UGC in March, 2000, obviously referred above as CAS. The petitioner further prayed that respondents be directed to make provisions under the CAS as per the procedure prescribed under the Rules of 1990 and respondents may be directed to consider the case of the petitioner for promotion under CAS from the date he became eligible for such promotion as per the procedure prescribed under the Rules of 1990 and grant him promotion if he is found suitable. The petitioner also challenged the change in composition of the selection committee made by the Ordinance. In this case also, the petitioner preferred writ petition to get the benefit under the CAS. The learned Single Judge specifically quoted the reliefs claimed by the petitioner in the impugned judgment dated 18.12.2002 and also specifically took note of the plea of the petitioner that he is seeking order against the respondent-University to implement the said scheme and then, took note of the direction issued by the Ministry of Human Resource and Development (Department of Education) issuing necessary direction to the UGC to the effect that UGC shall frame regulations for implementation of the scheme. Then the learned Single Judge firstly held that the cause of action arose to the petitioner in the year 1998 which has not been agitated by the petitioner at the relevant time when the petitioner's rights became mature, therefore, the writ petition was liable to be dismissed on the ground of delay and laches. Then secondly, it has been held that a provision for ex-cadre post has been deleted from the Act of 1974 then there remains no availability of chance of promotion on ex-cadre post and therefore, there cannot be any promotion on such post and ultimately, the petitioner's writ petition was dismissed. The judgment dated 18.12.2002 referred above, has been challenged in SAW No.65/2002 preferred by the JNV University and in SAW No.153/2003 preferred by Dr. RP Tripathi. Substantially, so far as second reason given by the learned Single Judge is based on the decision given in Fateh Kishan Kapil's case. 3. SBCWP No.3704/2001 Anil Pathak Vs. JNV University, decided on 21.12.2002 (under challenge in SAW No.66/2003 preferred by the JNV University and in SAW no.313/2006 preferred by the petitioner Anil Pathak):- In this writ petition also, the petitioner was appointed as Associate Professor on 3rd July, 1987 and, thereafter he was promoteed to the post of Reader (Associate Professor) on 25th Sept., 1987 and at the relevant time he was the Head of Department of English of the respondent-University. The petitioner was also aspirant for the post of Professor under the CAS and he also facing the difficulty because of the amended provision in Ordinance 317 and, therefore, the petitioner preferred the writ petition to challenge the amendment in Ordinance 317 with further prayer that respondents may be directed to call the petitioner for interview treating him to be eligible for the promotional post and consider his case for grant of promotion and if found suitable be granted promotion. This writ petition of the petitioner was decided on 21.12.2002. The learned Single Judge in this judgment found serious contradiction in the stand of the University and held that the selection process for all the departments which have been taken for appointment under CAS has been done in the light of the qualifications which according to the University itself has not been provided for CAS and, therefore, the exercise of promotion in the name of CAS is without jurisdiction. The learned Single Judge also observed that the process of promotion by only interview which is too uncertain and, therefore a very limited credence can be given to such procedure and in the present case there are changes of misusing this facet. The learned Single Judge also observed "In this background, as situations stand presently, a re-thinking is required to be done about providing provisions for promotion to the University Teachers." Then learned Single Judge considered how the promotions are given in other services. The learned Single Judge held selections in questions to be discriminatory and also result of non-application of mind and violative of Article 14 of the Constitution of India and set aside the entire process of selection under CAS and dismissed the writ petition of the petitioner. To challenge the judgment dated 21.12.2002 the respondent-University preferred SAW No.66/2003 and writ petitioner preferred SAW No.313/2006. The facts of above cases show that all writ petitioners were aspirant for the promotional post appropriate to their qualifications under the CAS and some of them even faced the interview who were eligible and others who were not found eligible, challenged the eligibility criteria adopted in process of selection for promotional post under the CAS and none of the petitioners challenged the scheme CAS and power and authority of the U.G.C. in framing the scheme and its binding nature upon the University, therefore, there was no fact foundation for challenge to the power and authority of U.G.C. and to the CAS in the writ petitions. Further more, all the petitioners even did not challenge the CAS or U.G.C's authority and power during arguments which is apparent from the judgments impugned itself but, after hearing, it struck to the learned Single Judge that implication of certain provisions of the Act of 1974 was having material bearing on the issue and, therefore, the parties are required to be heard on this aspect again. The learned Single Judge ordered for listing up the matter in the court and passed the following order in SBCWP No.3451/2001 on 11th Sept., 2002 : "The case was listed on a notice being issued to the parties to understand the implications of Section 11 and 12 of the Rajasthan Universities Teachers and Officers (Selection for Appointment) Act, 1974. The counsel for the respondent-University has produced an Amending Act dated March 30, 1998. To understand the amendment. Put up tomorrow i.e., 12.9.2002. On 12th Sept., 2002 the following order was passed: "Heard. A question was posed regarding the implications of Section 11 & 12 of the Rajasthan Universities Teachers and Officers (Selection for Appointment) Act, 1974 (in short 'the Act of 1974'). Counsel for the University has produced before me the Amending Act which amends Sections 2, 11 and 13 of the Act of 1974. It is submitted that the implication of the amendment is understood by the counsel for the University and parties. Nothing further is required to be submitted by the counsel for the parties. Since the parties have understood the implication of amendment produced, nothing further is required now. The case will be listed for pronouncement of judgment in future." And thereafter, the different judgments were delivered on different dates.
(3.) All the learned counsels argued only on the issues decided by the learned Single Judge of this Court in Fateh Kishan Kapil's case irrespective of the fact in which case he is appearing. Only the learned counsel Shri M.C. Bhoot appearing in the case of Ms. Prabha Bhandari supported the judgment delivered in Fateh Kishan Kapil's case. We found that other matters were decided by the learned Single Judge on different grounds and reasons, yet learned counsels assailed the judgment of Fateh Kishan Kapil's case, obviously for the reason that if the judgment in Fateh Kishan Kapil's case is upheld and it is upheld that appointment and promotion can be given only under the Act of 1974 and under the Act of 1974 no posts of Professor (promotion), Reader (promotion) are available and Section 12 of the Act of 1974 has overriding effect over law enacted by State as well as over orders issued under Central Act, like UGC Act, 1956 and it is held that UGC had no power to create post for teacher in University under any of the provisions of the UGC Act, 1956 and yet created the post then none of the petitioner can get any relief. Therefore, it will be appropriate for us to first examine the legality and validity of the judgment delivered in the case of Fateh Kishan Kapil.;