REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.268-269 of 2021
(arising out of SLP(C)Nos.17665-17666 of 2019)
POORAN CHAND ...APPELLANT(S)
VERSUS
CHANCELLOR & ORS. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
Leave granted.
2. These appeals have been filed challenging the
Division Bench judgment of High Court of Judicature
at Allahabad, Lucknow Bench dated 12.04.2018 by which
writ petition filed by respondent No.4 has been
allowed and the order of the Chancellor dated
08.07.2009 rejecting the representation made by
respondent No.4 was set aside.
3. Brief facts of the case for deciding these
appeals are:
1
3.1 King George Medical University is a Medical
University under the by U.P. Act No.8 of 2002
namely the King George Medical University
Act, Uttar Pradesh Act, 2002. An
advertisement dated 15.03.2005 was issued by
U.P. King George’s University of Dental
Sciences, Lucknow (hereinafter referred to as
“University”) inviting applications for the
post of Professors, Associate Professors,
Asstt. Professors and Lecturers.
3.2 The appellant made an application for
appointment on the post of Assistant
Professor whereas respondent No.4 made an
application for appointment on the post of
Lecturer. Both the appellant and respondent
No.4 were considered by the same Selection
Committee and recommendations of the
Selection Committee were approved by
Executive Council in its meeting dated
08.08.2005 approving the appointment of
appellant as Assistant Professor and that of
respondent No.4 as Lecturer. The appellant,
2
who was working as Assistant Professor in BRD
Medical College, Gorakhpur after obtaining
permission from State of U.P. joined as
Assistant Professor on 08.12.2005.
3.3 The respondent No.4 submitted his joining as
Lecturer on 08.08.2005. The respondent No.4
was promoted on the post of Assistant
Professor on 08.08.2007 after completing
three years experience. The representations
were submitted by respondent No.4 to the
University claiming seniority over the
appellant. A representation was addressed by
respondent No.4 to the Chancellor dated
13.02.2009 regarding the appointment and
claim of seniority as Assistant Professor in
the University. The respondent No.4 claimed
that his experience at the time of
appointment as Senior Research Fellow in
W.H.O. was not considered. His representation
to the Chancellor principally claimed
seniority over appellant based on his
experience claiming that he has also
3
completed requisite experience at the time of
his appointment on the post of Assistant
Professor.
3.4 The Chancellor vide his order dated
08.07.2009 rejected the representation made
by respondent No.4. The Chancellor in his
order referred to the report sent by the
University that experience of the appellant
as Senior Research fellow in W.H.O. cannot be
counted as experience. Aggrieved by the
order of the Chancellor dated 08.07.2009
rejecting his claim, the respondent No.4
filed a writ petition being Writ Petition
No.1350(SB) of 2009 praying for following
reliefs:-
“i. Issue a writ of certiorari
quashing the impugned order
dated 08.07.2009 passed by
Opp. Party No.1 and impugned
appointment order dated
08.08.2005 of OPP. Party no.4
as Asstt. Professor contained
in Annexure No.1 & 2 to the
writ petition.
ii. issue a writ of mandamus /
prohibition commanding the
OPP. Party No. 1 to 3 to
revert, back the OPP. Party
4
NO.4 from the post of Asstt.
Professor and post him in the
post Lecturer from the date of
joining forthwith.
iii. issue a writ of mandamus
commanding the Opp. Party No.1
to 3 to declare the petitioner
senior to the Opp. Party No.4
with all consequential service
benefits.
iv. issue a writ of mandamus
commanding the Opp. Parties to
count the period of Senior
Research Fellow as teaching
experience in promoting the
petitioner, as Asstt.
Professor.
v. any other writ, order or
direction which this Hon’ble
Court deem fit in the
circumstances of the case may
also be passed.
vi. Allow the Writ Petition with
cost.”
3.5 In the writ petition both the appellant as
well as University has filed their counter
affidavit and contested the claim of the
respondent No.4. Division Bench of the High
Court vide its impugned judgment dated
12.04.2018 allowed the writ petition. The
operative portion of the order of the High
5
Court is as follows:-
“The writ petition is
accordingly allowed. The order
dated 8.7.2009 passed by the
Chancellor is hereby quashed and
the University concerned is
directed to treat opposite party
no.4 having been appointed
initially on the post of Lecturer
in accordance with his
qualification. Consequences shall
follow accordingly. However, no
recovery shall be made from
opposite party no.4 from the
payment made to him on account of
said initial appointment on the
post of Assistant Professor.”
3.6 The appellant aggrieved by the judgment of
the High Court has come up in these appeals.
4. We have heard Ms. Meenakshi Arora, learned senior
counsel for the appellant. Shri S.R. Singh, learned
senior counsel appearing for respondent No.4. Shri
Vishnu Shankar Jain, learned counsel has appeared for
respondent No.3.
5. Learned counsel for the appellant contends that
the appellant had started working in the University
as Assistant Professor in BRD Medical College from
19.07.2003 to 07.12.2005. It is submitted that prior
to his deputation in BRD Medical College, Gorakhpur,
6
he was a member of Provincial Medical Services w.e.f.
01.09.1992 and had been working for more than a
decade as Dental Surgeon. It is submitted that
Selection Committee after considering the service
experience and working of the appellant found him
eligible for the post of Assistant Professor, and
recommended as Assistant Professor, who was appointed
as such. It is submitted that the respondent No.4
did not fulfil qualifications of Assistant Professor
since at the time of application, he had only one
year’s experience, hence, he rightly applied for the
post of Lecturer only. It is submitted that the
appointment of the appellant as Assistant Professor
was never challenged by respondent No.4 and it is
with regard to claim of seniority of respondent No.4
over the appellant he submitted his representation
both to the University and the Chancellor.
Representation to the Chancellor was also submitted
after more than three years from the appointment of
the appellant and representations were submitted by
respondent No.4 only when he was promoted as
Assistant Professor in the year 2007. It is
7
submitted that High Court committed error in
entertaining the challenge to the appointment of
appellant as Assistant Professor whereas appointment
was never challenged before the Chancellor or within
a reasonable period by the writ petition, which was
filed in the year 2009. The respondent No.4 cannot be
permitted to challenge the appointment of appellant
after a period of more than four years. It is
submitted that the appellant was senior to the
respondent No.4 right from the very beginning and the
claim of respondent No.4 regarding seniority of the
appellant was misconceived and the dispute was
initiated by respondent No.4 only for purpose of
claiming himself to be senior to the appellant. The
appellant fulfilled the qualifications for
appointment on the post of Assistant Professor and
has been working on his post since the date of
joining.
6. Shri S.R. Singh, learned senior counsel appearing
for the respondent No.4 submitted that the experience
of the appellant as member of Provincial Medical
Services was wholly irrelevant for the purpose of
8
appointment on the post of Assistant Professor. At
best, the appellant’s experience as Assistant
Professor in BRD Medical College, Gorakhpur in
Department of Dentistry from 19.07.2003 to 07.12.2005
can be taken into consideration, which is only two
years four months and 19 days, which was less than
three years, hence, he did not fulfil the eligibility
for the appointment on the post of Assistant
Professor. Shri S.R. Singh submitted that the
appellant, who did not fulfil the eligibility for the
post of Assistant Professor, his appointment on the
post of Assistant Professor was void and is nullity
and the decision of the High Court holding that
respondent No.4 not eligible is correct, which needs
no interference by this Court.
7. We have considered the submissions of the learned
counsel for the parties and have perused the records.
8. For the post of Assistant Professor and Lecturer
advertised by advertisement dated 15.03.2005
qualifications were referred to as qualifications
9
required as in the first Statute of Lucknow
University. Section 42 of the Act, 2002 provided for
first Statutes of the University. The Section
further provided that for so long as the First
Statutes are not so made, the Statutes of the Lucknow
University as in force immediately before the
appointed date in so far as they are not so
inconsistent with the provisions of the Act, 2002,
shall, subject to such adaptations and modifications,
continue in force. The relevant Statute of the
Lucknow University, which provides for qualification
for the post of Assistant Professor is Statute 11.02
B2, which is to the following effect:-
“11.02 B2. Assistant Professor: MDS or
equivalent degree as recognised by the
Dental Council of India in the subject
concerned with at least three years
teaching experience as Lecturer/Chief
Resident/Senior Resident/ Demonstrator /
Tutor or equivalent after obtaining MDS
degree in the subject concerned.
Provided that if suitable candidates
with requisite teaching experience are not
available the selection committee may
recommend candidates for appointment in
lower grade i.e. Lecturers.”
9. There is no dispute to the fact that in pursuance
10
of advertisement dated 15.03.2005 both appellant and
respondent No.4 had applied respectively for the post
of Assistant Professor and Lecturer and Selection
Committee recommended their appointment and Executive
Council in the meeting dated 08.08.2005 approved the
recommendations of Selection Committee appointing
appellant as Assistant Professor and respondent No.4
as Lecturer.
10. The University in its counter affidavit has
relied and referred to Section 53 of the U.P. Act No.
8 of 2002. Section 53 of the Act, 2002 is as
follows:-
“53- If any question arises whether
any person has been duly elected or
appointed as, or is entitled to be a
member of any authority or other body of
the University (including any question as
to the validity of a Statute, Ordinance or
Regulation, not being a Statute or
Ordinance made or approved by the State
Government or by the Chancellor) is in
conformity with this Act or the Statutes
or the Ordinances made thereunder, the
matter shall be referred to the
Chancellor, and the decision of the
Chancellor thereon shall be final:
Provided that no reference under this
section shall be made-
(a) more than three months
after the date when the question
11
could have been raised for the
first time,
(b) by any person other than
an authority or officer of the
University or a person aggrieved:
Provided further that the Chancellor
may in exceptional circumstances-
(a) act suo motu or entertain
a reference after the expiry of
the period mentioned in the
preceding proviso,
(b) where the matter referred
relates to a dispute about the
election, and the eligibility of
the persons so elected is in
doubt, pass such orders of stay as
he thinks just and expedient.”
11. Section 53 provides that if any question arises
whether any person has been duly elected or
appointed, the matter shall be referred to the
Chancellor, and the decision of the Chancellor
thereon shall be final. The Section also contains
proviso to the effect that no reference in this
Section shall be made more than three months after
the date when question could have been raised for the
first time. Although, by the second proviso,
Chancellor can entertain a reference after expiry of
the said period. There is an object and purpose for
12
entertaining any question regarding appointment of
member of any authority or body whether any person
has been duly appointed within a period of three
months. The members of the teaching faculty of the
University be it Lecturer or Assistant Professor are
entrusted with teaching, which is to be imparted
according to academic calendar. It is in the
interest of the University that all doubts regarding
appointment of teachers are raised within a period of
three months to have an early decision by Chancellor
to give quietus to the disputes in the University.
12. From the facts, which have been brought on
record, it is clear that the reference to the
Chancellor was made by respondent No.4 only on
13.02.2009, i.e., subsequent to he was promoted as
Assistant Professor. Chancellor in his order has
noticed the substance of claim of respondent No.4.
Respondent No.4 has claimed to include the experience
of Senior Research Fellow in W.H.O. The respondent
No.4 has complained non-consideration of experience
as Senior Research Fellow with the W.H.O. in his
13
experience for appointment on the post of Assistant
Professor. Chancellor noticed the stand of the
University with regard to claim of respondent No.4 to
include his experience as Senior Research Fellow in
W.H.O. and made following observations:-
“The University has informed that the
experience of Dr. Rao for his service with
the WHO as Senior Research fellow in the
teaching experience was not considered for
the appointment on the post of Assistant
Professor because there is no such scheme
in the bylaws. The applications sent by
Dr. Rao time to time had been disposed
off. The university has also informed
that case of Dr. Amit Nagar and Dr. G.K.
Singh has no similarity with the case of
the complainant and the case of Dr. Nagar
is different.
At the end the statement of the
university is that Dr. Rao has presented
applications without knowing the truth of
the facts mentioned therein and that
through unauthorised manner and since the
above case of Dr. Rao is meritless, having
no force and based on the false facts and
causing disillusion hence it has been
requested to reject the complaint.”
13. The Chancellor has further observed that the
respondent No.4 has mainly requested to establish his
seniority over the appellant. In the last paragraph
of the order, Chancellor has made following
14
observations:-
“The respondent has mainly requested to
establish his seniority against the
respondent Dr. Puran Chand and has mainly
stated that his experience as Senior
Research Fellow with Government of India
and WHO has not been counted as experience
by the Medical University. In the report
sent by the vice chancellor of the
Chhatrapati Shahu Ji Maharaj Medical
University, Lucknow in this regard, it has
been clarified that in section 10.01 (A)
of the First bylaws of the Lucknow
University which has been currently made
applicable to the Medical University also
there is no provision for considering the
services done with WHO as Senior Research
Fellow. The reason given by the
university is as per the law and the
present application lacking force is
rejected.”
14. The copy of the complaint to the Chancellor which
was filed on behalf of respondent No.4 has not been
brought by the respondent No.4 on the record, but
after perusal of the order of the Chancellor, the
main grievance of the respondent No.4 was noninclusion of his teaching experience, as Senior
Research Fellow in W.H.O. and his claim of seniority
over the appellant. The respondent No.4 has filed a
counter affidavit in this appeal where in paragraph
No.9, following has been pleaded by respondent No.4:-
15
“9. That in respect of the seniority
between the answering respondent and Dr.
Pooran Chand, a representation was
submitted by the answering respondent
before the University; but the same was
not considered and as such the answering
respondent approached the Hon’ble
Chancellor as per the provisions of
Section 68 of the State Universities Act,
1973.”
15. From the facts as noticed above and the pleadings
of the respondent No.4 in paragraph 9 of his counter
affidavit, it is clear that the respondent No.4 had
submitted his representation to the Chancellor
regarding seniority over the appellant and the
appellant’s appointment as Assistant Professor w.e.f.
08.08.2005 was not challenged. Respondent No.4
wanted that his experience as Senior Research Fellow
in W.H.O. be also included, which was not acceded to.
Section 53 of the Act, 2002 as noticed above when
provides that any dispute regarding appointment in
the University has to be raised within a period of
three months, the respondent No.4 could not have
raised any challenge to the appointment of appellant
after lapse of more than three years. The Chancellor
considered the representation of the respondent No.4
16
and decided it on merits, since the Chancellor was of
the view that the claim is essentially of seniority
by respondent No.4 over the appellant.
16. We, thus, are of the view that the appointment of
appellant as Assistant Professor, which is approved
on 08.08.2005 was not challenged or questioned by
respondent No.4 in accordance with provisions of the
Act, 2002. Although, in the writ petition filed by
respondent No.4, he has made a prayer for quashing
the appointment order dated 08.08.2005 of the
appellant as Assistant Professor but we are of the
view that the appointment of appellant as Assistant
Professor having not been challenged before the
Chancellor, he could not have been permitted to
challenge the appointment of appellant. Appointment
dated 08.08.2005 could not be allowed to be
challenged after four years in the writ petition.
17. Learned counsel for the appellant is right in her
submission that it was after respondent No.4 was
promoted as Assistant Professor, he submitted
representations and claimed before the Chancellor
17
seniority over the appellant. In the counter
affidavit filed by the University, details of the
representations, which were given by respondent No.4
to the Chancellor have also been mentioned in
paragraph 2.9, which are to the following effect:-
“2.9 That Dr. Jitendra Kumar Rao
preferred a representation to His
Excellency, the Chancellor of K.G.M.U. on
13.02.2009 with the following prayer:-
(a) My seniority in the department
as Assistant Professor may be
looked at.
(b) The seniority of Dr. Pooran
Chand may be reverted back as
per rules.
(c) If some conspiracy to hide the
facts in the appointment of
Dr. Pooran Chand is proved,
then an appropriate action
should be taken against
concern person.”
18. The prayer of the respondent No.4 that appellant
should be reverted on the post of Lecturer could not
have been entertained. There is no question of
reversion of the appellant on the post of Lecturer
when he was appointed as Assistant Professor on
08.08.2005.
18
19. Now, we may notice the judgments, which have been
relied by learned counsel appearing for respondent
No.4 in support of his submissions. Learned counsel
for the respondent No.4 has placed reliance on
judgment of this Court in Nagendra Chandra and Ors.
Vs. State of Jharkhand and Ors., (2008) 1 SCC 798.
The above case related to the appointment on the
vacancy for the post of Constables. The vacancies
were neither advertised through the Employment
Exchange nor in a newspaper, which was a requirement
of Rule 663(d) of Bihar Police Manual but was
displayed only on the notice board. The appellants
of the said case, who were appointed without
advertisement of the vacancy, were dismissed from
service. The writ petition was filed, which too was
dismissed. Challenging the order of the High Court,
the appeal was filed before this Court. Paragraph 3
of the judgment notices the submissions, which is to
the following effect:-
“3. Learned counsel appearing on behalf of
the appellants submitted that though the
vacancies were neither advertised through
the employment exchange nor in any
19
newspaper, as required under Rule 663(d)
of the Bihar Police Manual, but as the
same were displayed on the noticeboard, it
cannot be said that there was infraction
of the said Rule; as such the services of
the appellants should not have been
terminated, more so when they have
continued in service for a period of
fourteen years. On the other hand, learned
counsel appearing on behalf of the State
of Jharkhand submitted that as the
appointments, being in infraction of Rule
663(d), were illegal, the competent
authority was quite justified in
terminating services of the appellants.”
20. In paragraph 9 of the said judgment, this Court
laid down following:-
“9. In view of the foregoing discussion,
we have no option but to hold that if an
appointment is made in infraction of the
recruitment rules, the same would be
violative of Articles 14 and 16 of the
Constitution and being nullity would be
liable to be cancelled. In the present
case, as the vacancies were not advertised
in the newspapers, the appointments made
were not only in infraction of Rule 663(d)
of the Bihar Police Manual but also
violative of Articles 14 and 16 of the
Constitution, which rendered the
appointments of the appellants as illegal;
as such the competent authority was quite
justified in terminating their services
and the High Court, by the impugned order,
was quite justified in upholding the
same.”
20
21. There cannot be any dispute to the preposition
that when the appointment is made in infraction of
the recruitment rules, the same would be liable to be
cancelled. The present is not a case where
appointment of appellant was cancelled by any
competent authority. The appellant was appointed,
recommended by Selection Committee with due approval
of the Executive Council and the appointment was made
after due advertisement. The above judgment, thus,
is distinguishable and does not help the respondent
No.4.
22. Another judgment relied by learned counsel for
the respondent No.4 is Government of Andhra Pradesh
and Ors. Vs. K. Brahmanandam and Ors., (2008) 5 SCC
241, which was a case where management neither
obtained the prior permission of school authorities
nor advertised the vacancy in two newspapers and made
appointment. The appointees, i.e., Secondary Grade
Teachers filed representations for their salary,
which was rejected by the District Education Officer.
A writ petition was filed, which petition was allowed
21
directing for their continuance. In the appeal filed
by the State, the judgment of the High Court was set
aside. This Court held that the appointments made in
violation of the mandatory provisions of a Statute
would be illegal and, thus, void. There can be no
dispute to the above preposition but the above was a
case where the appointment of the teachers were
neither approved nor was made in accordance with the
statutory rules, hence, this Court took the view that
they are not entitled for any salary from the State
and it was school authorities to pay their salary.
23. Another judgment relied by the learned counsel
for the respondent No.4 is Pramod Kumar Vs. U.P.
Secondary Education Services Commission and Ors.,
(2008) 7 SCC 153, which was also a case of a teacher,
who had obtained B.Ed. degree from an institution,
which was not recognised. He was appointed by the
Management Committee and filed a writ petition for
his salary, his services were terminated. He filed a
writ petition, which was dismissed, against which
appeal was also dismissed. This Court in paragraph
22
21 made following observations:-
“21. It is not in dispute that the said
institution was not recognised by any
university. A degree is recognised only if
it is granted by a university constituted
in terms of the University Grants
Commission Act, 1956 or under any State or
parliamentary Act. No university can be
established by a private management
without any statutory backing.”
24. This Court dismissed the appeal filed by the
teachers. The above case was also on different
premise and does not help the respondent No.4.
25. Appellant has also placed reliance on judgment
of this Court in State of Jammu and Kashmir Vs. R.K.
Zalpuri and Ors., (2015) 15 SCC 602 where writ petion
was filed challenging the dismissal order after six
year. The writ petitoin was allowed by the learned
Single Judge against which LPA by the State was also
dismissed. This Court allowed the appeal and held
that delay in approaching High Court under Article
226 was fatal in the above case. In paragraphs 26
and 27 following was laid down:-
“26. In the case at hand, the employee was
dismissed from service in the year 1999,
but he chose not to avail any departmental
23
remedy. He woke up from his slumber to
knock at the doors of the High Court after
a lapse of five years. The staleness of
the claim remained stale and it could not
have been allowed to rise like a phoenix
by the writ court.
27. The grievance agitated by the
respondent did not deserve to be addressed
on merits, for doctrine of delay and
laches had already visited his claim like
the chill of death which does not spare
anyone even the one who fosters the idea
and nurtures the attitude that he can
sleep to avoid death and eventually
proclaim “deo gratias”—“thanks to God”.”
26. As observed above, the Act which Governs the
appointment of Assistant Professors and Lecturers in
the University itself provides a mechanism for
questioning an appointment, i.e., by representation
to the Chancellor that too within a period of three
months. Any challenge to appointment after more than
three years cannot be entertained as we have already
held that respondent No.4 in his representation
before the Chancellor never challenged the
appointment of appellant as Assistant Professor and
had filed representation only claiming seniority over
24
appellant after he got promoted as Assistant
Professor himself in the year 2007, High Court ought
not to have entertained the challenge to the
appointment of appellant in the writ petition and
ought to have confined the consideration of claim of
respondent No.4 for seniority over the appellant.
When the appointment of appellant was not challenged
in reasonable time as per the provisions of the Act,
2002, it is not in the ends of justice to permit the
respondent No.4 to challenge such appointment in the
High Court in the writ petition for the first time,
after more than four years of the appointment.
27. We, thus, are of the considered opinion that High
Court committed an error in quashing the appointment
of respondent No.4 as Assistant Professor, quashing
the order of the Chancellor as well as direction to
treat the appellant as being appointed as a Lecturer.
There was no error in the order of the Chancellor
rejecting the representation made by the respondent
No.4, which representation was referable to Section
53 of Act No. 8 of 2002. High Court committed error
25
in quashing the order as well as issuing directions
as noted above.
28. In view of the foregoing discussions, we allow
the appeals and set aside the judgment of the High
Court dated 12.04.2018 and dismiss the writ petition
filed by respondent No.4.
......................J.
( ASHOK BHUSHAN )
......................J.
( R. SUBHASH REDDY )
......................J.
( M.R. SHAH )
New Delhi,
January 29, 2021.
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