KUDAL, J - (1.) THIS second appeal is directed against the judgment and decree of the learned District Judge, Jaipur, City dated 13-11-1976, whereby the judgment and decree of the learned Munsiff, Jaipur East, Jaipur dated 9-3-1976 were reversed.
(2.) THE facts of the case, in brief, are that the plaintiff Mohan Melwani filed a suit for declaration and permanent injunction against the University of Rajasthan Jaipur on 10-12-1975 It was contended by the plaintiff that he was appointed as Stenographer on 5-2-1958, and was ordered to be promoted as Stenographer Cr. I with effect from 17-7-1965. THE plaintiff was promoted as officiating section Officer on 23-10-1973. THE Departmental Promotion Committee constituted under Rule 20 of the Rajasthan University Employees (non-teaching) Recruitment Rule (hereinafter to be referred to as Recruitment Rules), selected the plaintiff for the post of Section Officer, and he was placed on probation for one year wish effect from 4-3 1974 Later on, the plaintiff's probation period was extended for a further period of six months. THE extended probation period expired on 3-9-1975. THE plaintiff's contention is that in terms of Rule 33 (4) of the Recruitment Rules, it should be deemed that he was comfirmed after the lapse of two months of the probation period. Two months after the end of the probation period expired on 3-11-1975. On 9-12-1975 the plaintiff was reverted as Stenographer Gr. I. THE plaintiff prayed that the order of 9-12 1975 be declared null and void and he be declared as a confirmed Section Officer, and the defendant be restrained by means of a permanent injunction from implementing the order of reversion. The defendant, however, contended that the work of the plaintiff was not found satisfactory and that is why his probation period was initially extended for six months, and as there was no improvement he was ordered to be reverted to his substantive post of Stenographer Gr. I. It was also contended that the Vice-Chancellor had ordered that the Recruitment Rules would be kept in abeyance with effect from 23-7-1975, and that as these rules had no applicability, the plaintiff did not and could not derive any advantage of Rule 33 (4) of the Recruitment Rules. The decision of the Vice-Chancellor dated 23-7-1975 was, it was contended, approved by the Syndicate on 21-11-1975 It was also contended that the order of reversion was not justiciable and could not be challenged in a court of law It was also contended that any person aggrieved or dissatisfied with an order passed by the administration could prefer an appeal, and in that view of the matter, the plaintiff should have sought his remedy by preferring an appeal before the authority mentioned under the said rules and the suit so brought by him was per so not maintainable The learned Munsiff framed the following issues on 5-1-1976: - (1) Whether order No. 25639-43 Est dated the 9th December, 1975 is illegal, invalid, inoperative and if so what is its effect on the suit? (2) Whether Rules 33 (iv) of the Rajasthan University Employees (non-teaching) Recruitment Rules ceased to apply to the employees of the University in view of the decision taken by the Vice-Chancellor and further approved by the Syndicate vide Resolution No. 15 dated 21-11-1975 and if so to what effect on the suit ? (3) Whether the suit is not maintainable as mentioned in para No. 1 and 4 of the additional pleas of the written statement? (4) Relief? The plaintiff examined himself and closed his evidence. On behalf of the defendant, DW/1 Vasudeo Kumar, DW/2 M. K. Mukherji, DW/3 Makla Zutsi, DW/4 Premchand, DW/5 Ramesh Chander Srivastava and DW/6 Natwar Sharma were examined. The learned trial court dismissed the plaintiff's suit on 9-3-1976. The plaintiff feeling aggrieved filed an appeal before the learned District Judge, Jaipur City. The plaintiff's appeal was allowed on 13-11-1976, and the plaintiff's suit was decreed with costs throughout. The University of Rajasthan feeling aggrieved against the judgment and decree of the learned District Judge has filed the present appeal, on 1. 12-1976 On behalf of the defendant-appellant it was contended that the learned District Judge arred in law in holding that the Vice chancellor could not keep in abayance the Recruitment Rules. It was further contended that in the facts and circumstances of the case, the order of reversion of the plaintiff-respondant was not justiciable in a court of law, and that the learned District Judge, therefore, erred in law in decreeing the plaintiff's suit It was also contended that the plaintiff respondent's work was not satisfactory, and that in the interests of the University it was considered necessary that the plaintiff-respondent be reverted to his substantive post of Stenographer Gr. I. It was also contended that the powers conferred on the Vice-Chancellor under the Section 13 (4) (a) of the Rajputana University Act, 1946 are co-terminus with that of the powers of the Syndicate and other authorities of the University. It was also contended that the Vice-Chancellor alone is competent to decide whether any emergency at a particular moment existed or not, and especially when the Syndicate had ceased to function It was also contended that the section of the Vice-Chancellor was ratified by the Syndicate in its meeting held on 21-11-1975. It was also contended that the learned District judge erred in law in holding that the Vice-Chancellor did not pass the impugned order of the reversion of the plaintiff respondent in exercise of his emergency powers. It was also contended that the rules had not been framed under the legislative function of the Syndicate. It was therefore, contended that the appeal be accepted and the judgment and decree of the learned District Judge be set aside and that of the learned trial court be restored. On behalf of the plaintiff respondent, it was contended that the order of the Vice Chancellor dated 23-71975 does not indicate that he had passed those orders at the time when any emergency existed, and under such circumstances the powers under section 13 (4) (a) of the University of Rajputana Act, 1946 could not be availed of. It was also contended that the Rules could not be kept in abeyance by the Vice Chancellor as these rules have been framed by the Syndicate under its legislative functions It was also contended that the enquiring officer namely, the Deputy Registrar had exonerated the plaintiff respondent from the charges and that the Registrar differed with the findings of the Deputy Registrar and while making a recommodation to the Vice-Chancellor for reversion of the plaintiff respondent no opportunity was afforded to the plaintiff respondent to meet the charges. As a matter of fact, the plaintiff-respondent was not heard at all. It was contended that the order dated 9-12-1975 Ex. 7 was passed by the Registrar. The Registrar of the University, it was contended, had no jurisdiction to pass such an order. The order could be passed only by the Syndicate or by the Vice-Chancellor. It was also contended that the order of reversion amounted to the reduction in rank and could not be passed without affording a reasonable opportunity to the plaintiff respondent as provided in sec. 384 which is equivalent to Art 311 of the Constitution of India. It was also contended that no emergency existed and the Vice-Chancellor could not invoke the powers under sec. 13 (4) (a) of the University of Rajputana Act, 1946. It was also contended that an application under O. 41, R. 1, Cr. P. C. had been filed on 37-2-1977 seeking permission to raise the legal point that the Registrar had absolutely no authority to pass an order of reversion. It was further contended that this being a pure question of law could be raised at any stage, and especially when the defendant appellant had not filed any reply despite lapse of more than 8 months.
(3.) ON behalf of the defendant appellant, it was contended that the question of lack of authority in the Registrar in passing the order Ex. 7 dated 9. 12. 1975 could not be taken up for the first time in the second appeal. The contention of the learned counsel for the parties has been considered and the record of the case carefully perused. The plaintiff-respondent was appointed as Stenographer on 5-2-1958 He was promoted as Stenographer Gr. I on 17. 6. 1965. The Departmental Promotion Committee constituted under Rule 20 of the Recruitment Rules selected the plaintiff respondent for the post of Section Officer, and placed him on probation for Amerind of one year which ended on 4-3-1975. The period of probation was extended for another six months upto 3-9-1975. There after, the Registrar by his order dated 9-12-1975, Ex. 7, reverted the plaintiff-respondent to his substantive post of Stenographer Gr. I. The plaintiff-respondent has vehemently contested that the order dated 9-12-1975 is illegal, invalid and inoperative from its very inception. Vide Ex. 5, the Registrar recommended to the Vice-Chancellor that the existing Recruitment Rules have become inoperative with immediate effect, and till new rules are framed and approved by the Syndicate, the selection of personnel to the non-teaching posts in the various cadres above the UDCs slevel may be provisionally made through open competition on the basis of qualifications experience and efficiency. The Vice-Chancellor on 23-7-1975 agreed with the latter part of this recommendation with the result that the Recruitment Rules were thought to have become inoperative. On 9-12-1975, vide Ex. 7, the plaintiff respondent was reverted to the post of Stenographer Gr. I. It is further said that the order of the Vice-Chancellor dated 23. 7. 1975 was confirmed by the Syndicate in its meeting held on 21-11-75 In view of these facts, the most important question to be decided is, whether the Vice-Chancellor is empowered to put the Recruitment Rules into abeyance. In section 2 (c) of the University of Rajputana Act, 1946, statutes, ordinances, regulations and rules mean respectively statutes, ordinances, regulations and rules made under this Act. Section 31 A provides that any authority of the University specified in clauses (iv), (v), (vi) and (vii) of Sec 17, and any other Board of the University may, subject to the approval of the Syndicate, make Rules, consistent with this Act and the Statutes, Ordinances, and Regulations, providing for all matters solely concerning the conduct of its own business Under Section 21 of the Act Syndicate is the executive body of the University. Under Sec 22 the Syndicate exercises the powers and performs the functions mentioned therein. Section 22 (g) as originally existed reads as under: - "22 (g) subject to the provisions of this Act and the Statutes, to appoint officers (other than the Chancellor, Vice-Chancellor and Deans of Faculties), teachers, clerical staff and servants of the University and to define their duties emoluments and conditions of service and to provide for the filing up of temporary vacancies in their posts. " Sec. 22 (m) reads as under - to exercise all other powers of the University, not otherwise provided for by this Act or the statutes. " By an ordinance dated July 10, 1975, this Act was amended, section 22 (g) after amendment reads as under: - "subject to the provisions of this Act and the Statutes, to appoint officers (other than the Chancellor, Vice-Chancellor and Deans of Faculties), teachers and to define their duties, emoluments and conditions of service. " Clause (m) of sec. 22 was omitted. It was further provided that notwithstanding anything contained in the principal Act on such dissolution, all things done, action taken, appointments and order? made by the Syndicate dissolved by the Ordinance shall to all intents and for all purposes, continued to be in force until they are rescind or modified by the Syndicate re constituted. ;