King George Medical University Act, Uttar Pradesh Act, 2002: s.53 – Applications invited for the post of Assistant Professors, Professors, Associate Professor and Lecturers – Appellant applied for the post of Assistant Professor whereas respondent no. 4 applied for the post of Lecturer – Appellant was selected and joined as Assistant Professor on 08.12.2005 – Respondent no. 4 joined as Lecturer on 8.8.2005 – Respondent no. 4 was promoted on the post of Assistant Professor on 8.8.2007 – Representations were submitted by respondent no. 4 to the university claiming seniority over the appellant based on his experience at the time of appointment as Senior Research Fellow in WHO – Chancellor rejected the representation of respondent no. 4 referring to the report sent by the University that experience as senior Research Fellow in WHO cannot be counted as experience – Respondent no. 4 filed writ petition – In writ petition, both the appellant as well as University contested the claim of respondent no. 4 – High Court allowed the writ petition – On appeal, held: s.53 provides that if any question arises as to 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 – s.53 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 – The object and purpose for entertaining any question regarding appointment within a period of three months is that 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 and 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 – The present is not a case where appointment of appellant was cancelled by any competent authority – Appellant was appointed, recommended by Selection Committee with due approval of the Executive Council and the appointment was made after advertisement – Challenge to appointment after more than three years cannot be entertained as 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 appellant after he got promoted as Assistant Professor himself in the year 2007 – Therefore, High Court ought not to have entertained the challenge to the appointment of appellant 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 – There was no error in the order of the Chancellor rejecting the representation made by the respondent No.4 – Service law – Seniority – Universities – Education/Educational Institutions.
Allowing the appeals, the Court
HELD: 1. There is no dispute to the fact that in pursuance of advertisement, 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. [Para 9][791-D-E]
2. The University in its counter affidavit has relied and referred to Section 53 of the U.P. Act No. 8 of 2002. 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 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. [Paras 10, 11][791-E; 792-C-F]
3. 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. 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 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 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. Thus, 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 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. [Paras 12, 15, 16][792-F-G; 794-B-F]
4. 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 seniority over the appellant. 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. [Paras 17, 18][794-G-H; 795-C-D]
5. 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. [Para 21][796-E-F]
6. 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 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 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. [Para 26][798-C-F]
7. The 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 in quashing the order as well as issuing directions. [Para 27] [798-F-G]
Nagendra Chandra and Ors. v. State of Jharkhand and Ors. (2008) 1 SCC 798 : [2007] 12 SCR 608;
Government of Andhra Pradesh and Ors. v. K.
Brahmanandam and Ors. (2008) 5 SCC 241 : [2008] 7 SCR 140 – distinguished.
Pramod Kumar v. U.P. Secondary Education Services Commission and Ors. (2008) 7 SCC 153 : [2008] 4 SCR
559 – held inapplicable
State of Jammu and Kashmir v. R.K. Zalpuri and Ors. (2015) 15 SCC 602 : [2015] 12 SCR 285 – referred to
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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