N. C. SHARMA, J. - (1.) THIS order will dispose of two Civil Writ Petitions No. 475 and 476 of 1989, filed respectively by Sunil Kumar Saxena and Mohan Lal by a common order as in both of them, the petitioners have prayed for the issue of a writ of mandamus directing the University of Rajasthan to appoint them as Assistant Professor in the Department of Public Administration and in the Department of Business Administration respectively and have alleged that there has been violation of their fundamental rights under Arts. 14, 16 and 21 of the Constitution of India.
(2.) THE case set up by Sunil Kumar Saxena is that he is a Master of Arts in Public Administration having secured 55% marks with an added qualifica -. tion of M. Phill (Public Administration ) and also some research work. An advertisement was published by the University of Rajasthan on June 18, 1988 in a daily newspaper 'rajasthan Patrika' inviting applications for appointment in various disciplines in the faculties of the University. THE petitioner was an applicant for the post of Assistant Professor in the Department of Public Administration. THE Selection Committee of the University considered the candidature of the petitioner and others and prepared a select list in which the petitioner was placed at Sr. No. 4. One Pradeep Saxena was at the top of the select list and he was appointed as an Assistant Professor in the month of November 1988 vide order dated November 21, 1988. THEreafter two more appointments of persons standing at Srl. No. 2 and 3 of the select list were made by an order dated January 18, 1989. One of them was Dr. (Mrs.) Manorma Joshi. She however, did not join her service and therefore, the University cancelled her appointment. According to the petitioner, therefore, one post of Assistant Professor in Public Administration became vacant and since his name stood at Sr. No. 4" of the select list, he should have been appointed by the University on this post which had fallen vacant on account of cancellation of the appointment of Dr. (Mrs.) Manorma Joshi. THE petitioner gave a notice of demand for justice, but he was not appointed. He complaints that the action of the University in depriving him of appointment as Assistant Professor in Public Administration was arbitrary and violated the fundamental rights guaranteed by the aforesaid Articles of the Constitution. THE return has been filed by the University of Rajasthan and, its case is that the. appointments. of ad hoc Assistant Professor were made on the basis of requirement. THE Head. of Department in Public Administration on February 2, 1989, informed the Vice Chancellor of the University that Dr. (Mrs.) Manorma Joshi had not joined the duties till January 31, 1989 and hardly one month was left for the teaching session to close and, therefore, he did not think it advisable to appoint an Assistant Professor as he would be able to finish the courses with the existing staff and further that the matter of next appointment may, therefore, be taken up in the next session. Finally, a decision was taken by the. University not to make any further appointment on the post of Assist. Professor in the Depart-ment of Public Administration. According to the respondent, no legal right had accrued to the petitioner for appointment merely because his name was on the merit of select list.- More or less similar are the facts in S. B. Civil Writ Petition No. 476/1989 filed by Mohan Lal. Mohan Lal is an M. Com. in First Division having secured 67% marks with the qualification of M. Phill attached to him and also teaching experience of three years. He had applied for appointment to the post of Asstt. Professor in Business Administration. His name was at Sr. No. 4 of the select list. Appointments to three persons standing higher to him were given. According to the petitioner Mohan Lal, the Head of Department in Business Administration addressed a letter, Annexure/2, on February 1, 1989 to the Vice-Chancellor mentioning therein about the unprovided workload of 40. 5 periods in Business Administration for various classes. He has further alleged that in other faculties also the work-load was determined by respective Heads of Departments and certain appointments in other disciplines were made on November 30, 1988 and also on January 30, 1989. On this basis, the petitioner claims that his non-appointment to the post of Assistant Professor in Business Administration despite the existence of work-load was arbitrary and, he has also prayed that the University may be directed to appoint him as Assistant Professor in Business Administration. In relation to Mohan Lal, the stand taken by the University of Rajasthan is that three ad hoc Assistant Professors in Business Administration were appointed keeping in view the requirement of the Department. Normally, the Head of Department places before the committee constituted for the purpose of determining the work-load of the Department and to recommend for appointment of ad hoc Assistant Professor counted on the basis of work-load indicated by the Head of Department. Appointments are normally made in ad hoc manner immediately. It is also stated that normally for uncovered work-load of 21 periods ad hoc appointment of one Assistant Professor is made. The request of the Head of Department of Business Administration made by his letter dated January 5, 1989 was examined and the Head of Department was requested to utilise the services of retired teachers for uncovered work-load for the remaining part of the Session 1988 89, as it was felt that for the short duration, the services of retired teachers could be utilised and that was done. It may be mentioned that the University of Rajasthan by its two orders dated May 19, 1989 and August 21, 1989, extended the term of these Assistant Professors who were given ad hoc appointments for a period upto May 7, 1989 or till the final assessment of the work-load of various teaching departments was made or till further orders, whichever was earlier. Universities are high institutions and imparting higher education, knowledge, learning and research. Britishers gave to this country a very efficient educational, judicial, postal, railways, health and public administration system and, this country would have been fortunate if it could have been able to retain and maintain quality and efficiency which the foreign rulers gave to us. To our disappointment, this is not so. The University of Rajasthan, which was formerly known as University of Rajputana is the oldest University of this State, because the University of Rajputana is the oldest University of the State because the University of Rajputana was incorporated in the year 1946 and its name was changed as University of Rajasthan in the year 1956. After about 28 years of the establishment of the University, the Legislature seems to have expressed its distrust in the mode of appointment of teachers and officers in the University of Rajasthan. The Legislature did not repose confidence in high holders of office, like Vice-Chancellor and Heads of Departments and the distrust and no-confidence was to an extent that by a non-obstance clause in Sec. 3 of the Rajasthan University Teachers and Officers (Special Conditions of Service) Act, 1974, it was in strong terms declared that notwithstanding anything contained in the relevant law, as from the Commencement of this Act, no teacher and no officer in any University in Rajasthan shall be appointed except on the recommendations of the Selection Committee constituted under Sec. 4. The Legislature did not stop there and it further proceeded to declare that save otherwise provided in sub-section (3) of Sec. 3 every appointment of a teacher or an Officer in the University made in contravention of sub-sec. (1) shall be null and void. A very high-powered selection committee was provided for by Sec. 5 of the Act, for the purpose of making selection of teachers or officers in a University and, inter alia, it consists of Vice-Chancellor eminent educationalist to be nominated by the State Government, member of Syndicate to be nominated by the State Govt. , all for a period of one year and not only that but also other persons specified in the Schedule appended to the Act. The object seems to be that the Legislature intended that a fair and impartial selection may be made of teachers and officers and the selected candidates should also be meritorious enough to be worthy of teachers in high educational institutions like University. It might be that difficulties occurred or were experienced in conssituting such an unwieldy selection committee whose constitution would be by nominations from Vice Chancellor and the State Government. To me, for that limited purpose sub-sec. (3) of sec. 3 was inserted in the Act which originally provided that nothing herein contained shall apply to the appointment of a teacher or an officer as a stop gap arrangement for a period not exceeding six months (now one year) to the appointment of part-time teacher or of a teacher or Officer in the pay scale lower than that of Lecturer or Assistant Registrar respectively. The very language of sub-sec. (3) would go to show that if only carves out an exception to the rigid mandate of Legislature contained in sub-secs. (1) and (2) of sec. 3 that no stop-gap arrangement could continue for a period of more than six months (now one year ). The University of Rajas-than appears to be adopting tactics of defeating the intention of the Legislature so wholesomely incorporated in sub-sections (1) and (2) of Sec. 3. It likes that the appointing power of Assistant Professors should only remain with it. How it can remain with it when the Legislature has unequivocally shown its distrust against it. The rigid and strict exception contained in sub-section (3) of Sec. 3 of the Act cannot be utilised as a general rule. It lies beyond my comprehension as to how the University continue the stop-gap and ad hoc appointments made sometime in the month of January 1989 to May 7, 1990. The University of Rajasthan should very well realise that it cannot be allowed to circumvent sub-section (1) of Sec. 3 of the Act by any device and it is high time for it to clearly realise it. . So far as the petitioners are concerned, the law is very well-settled. The petitioners had a right of consideration. They had no right to appointment. The mere inclusion of their names in the select list does not confer any right upon the petitioners to appointment. This law is settled by a series of decisions of the Supreme Court. I may, however, deal with certain decisions relied upon by the learned counsel for the petitioners. The first decision is in the case of Ramnath Khanna vs. State of Rajasthan (1 ). It may be mentioned with regard to this decision that the petitioner held the additional charge of the post of State Health Transport Officer for a period of about two years. The substantive post of the petitioner was that of Senior Foreman. The Post of State Health Transport Officer was to be filled in 100% by promotion. However, respondent No. 5, who was working as Deputy Controller of Transport, Ministry of Health and Family Planning, New Delhi, was appointed on a temporary basis for one year till the candidate duly selected by the Commission was available. It was admitted on behalf of the State that two posts-one of Deputy State Health Transport Officer and the other of Works Manager-were created by the department but the same could not be filled up on account of administrative reasons and for the reason that there was a ban on holding of the Departmental Promotion Committee meeting. On behalf of the State, the learned counsel appearing informed the Court that the ban which was on the filling of those posts had been lifted and that the Department was under no obligation to fill up those posts. In these circumstances, it was stated that once it was conceded that the posts were continued and that there was no ban, there was no reason why an impression should be allowed to be continued by the Department that it is not filling up the posts. On facts, this decision has no application whatsoever to the present case.
(3.) THE decision in S. Govindaraju v. Karnataka SRTC (2) was a case where the matter was governed by the Karnataka Road Transport Corporation (Cadre and Recruitment) Regulations, 1982, which were statutory in nature and regulated the conditions of service of its employees. Regulations 10 (5) of the Regulations provided that during temporary/badli appointment, a candidate if terminated/removed from service as unsuitable for the post, he will forfeit his chance for the appointment in terms of his selection. Appellant's service in that case was terminated on the ground of being found unsuitable without affording him any opportunity of showing cause or giving an explanation. In the light of these facts, the question involved was of violation of natural justice. No question of applicability of the rules of natural justice arises in the present case. In the case of Krishi Upaj Mandi Samiti, Jaipur vs. State of Rajas-than (3), it was very well recognised that it could not be disputed that the selected candidates, merely because their names were included by the Selection Committee in the list of selected candidates, did not confer any right to appointment to the posts for which they were selected. What was held in that case was that the Appointing Authority could not refuse to accept the recommendation of the Selection Committee simply on the ground that the persons recommended were not acceptable to the Appointing Authority, or that a person rejected should have been recommended. The principle laid down in this decision, that a mere inclusion of the name of the candidate in the select list does not confer upon him any right of appointment, clearly goes against the petitioners. The decision in Bhag Singh vs. State of Punjab (4) was relating to selection of constable for promotion course training. The case did not relate to appointment. ;