Allowed

Ajay Kumar Singh v. State of U.P. Thru. Prin. Secy. Higher Education U.P. Civil Secrt. Lko. and Others

Allahabad HC15 May 2024SPLA/103/2024

Case brief

AI extract

What is this about?

Appeal against High Court order dismissing writ petition challenging appointment of respondent as Board of Studies Convener. High Court held appointment was erroneous as post-holders were ineligible; statutory remedy unavailable due to apparent error on facts/law concerning seniority and position.

What did the court decide?

Stayed order of writ court and appointment order. Called upon Vice Chancellor to appoint Convener within one week in compliance with the proviso to ordinance No. 16-D (3).

Ajay Kumar Singh vs State of U.P. Thru. Prin. Secy… — Service and Employment | Allahabad HC (2024)

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Court No. - 2

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Case :- SPECIAL APPEAL No. - 103 of 2024

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Appellant :- Ajay Kumar Singh Respondent :- State Of U.P. Thru. Prin. Secy. Higher Education U.P. Civil Secrt. Lko. And Others Counsel for Appellant :- Shweta Shukla,Santosh Kumar Misra Counsel for Respondent :- C.S.C.,Akhilesh Kumar Srivastava,Rakesh Kumar Srivastava

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Hon'ble Rajan Roy,J. Hon'ble Om Prakash Shukla,J.

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1. Heard.

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The present Special Appeal has been filed challenging the order of the writ court dated 19.04.2024 and the order dated 11.10.2023 challenging the orders of appointment of respondent no.-5 herein, who was opposite party in the writ petition, to the post of Convener of Board of Studies of department of law and rejection of appellant's representation in this regard.

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Appellant and respondent no.5 are Associate Professor and Professor respectively in respondent no.4 college which is affiliated to respondent no.3 University.

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The writ petition has been dismissed on the ground of availability of statutory remedy under Section 68 of U.P. State Universities Act, 1973. The contention is that the writ Court has not appropriately exercised its discretion as it was a case of apparent error where the respondent no.5, in spite of the fact that he was not an Associate Professor, has been appointed as Chairman/Convener dehors the proviso to ordinance No.16-D (3) framed by the University. The contention is that the respondent no.5 herein had already been appointed as Convener, based on his seniority and rotation when he was Associate Professor in the same college in which the petitioner is an Associate Professor, vide order dated 19.04.2019 for a period of 3 years and the term expired on 28.04.2022. In the interregnum on 11.11.2021 the respondent no.5 was promoted to the higher post of Professor, therefore on the date of completion of his term as Convener he was a Professor and by virtue of his status of Professor he was outside the zone of consideration for appointment as Chairman/Convener of the Board of Studies. As in the University namely Ram Manohar Lohia, law is not a subject taught in any department, therefore it is the proviso to Section 16-D (3) of the ordinance framed by the University which would apply, according to which, in case a

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subject is being taught without there being a department of the subject concerned in the residential wing of the University, two teachers of reader rank from the colleges (only one reader from a college) in place of persons who would have been on the Board under above sub-clauses (sub-clause (i) to (iv)) in such case Chairman/Convener shall be by rotation in order of seniority of concerned subject teachers of the University/colleges.

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The Submission is that it is the appellant who is next in seniority i.e., next to respondent no.5 and as respondent no.5 could not have been appointed therefore it was the appellant who should have been appointed. The error is so apparent on the record that no two views are possible therefore this was not a case where the appellant could have been relegated to statutory remedy as it is trite that merely because there is a remedy, even if it is a statutory remedy, the extraordinary discretionary jurisdiction of the High Court under Article 226 of the Constitution of India is not ousted, certainly not where the facts are so apparent and the illegality is also apparent.

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Learned counsel for the applicant also submitted that the appellant had earlier challenged the appointment of respondent no.5 by means of a writ petition which was disposed of with a direction to decide the representation, whereupon the order dated 11.10.2023 was passed and thereafter the said orders were challenged, therefore there is no delay on the part of the appellant while approaching the writ court but all these facts were lost sight of by the writ court.

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On being confronted learned counsel for the respondent University, Sri Srivastava submitted that a division bench of this Court in Writ A No. 46280 of 2014 (Dr. Nand Pal Vs. State of U.P. and others) has interpreted the provisions to contend that the rotation in seniority would be amongst professors. Apart from relying on the said judgment no other argument was made by the learned counsel appearing for the University.

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We have gone through the said judgment, the reliance is absolutely misplaced. The only reason we have to make this observation is because reliance upon it is being insisted upon by the learned counsel for the University. In the said case provision contained in Section 27(4) of the U.P. State Universities Act 1973 applicable to Universities, was considered, which reads as under:-

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"(4) There shall be a Dean of each Faculty who shall be chosen from amongst the Professors by rotation in order of seniority and shall hold office for three years :

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Provided that in the case of a Medical, Engineering, Ayurvedic or Fine Arts College, the Principal of such college shall be the ex officio Dean of Medical, Engineering, Ayurvedic or Fine Arts Faculty, as the case may be :

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Provided further that where there is more than one such college, the Deanship of each such Faculty shall rotate amongst the Principals of such colleges :

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Provided also that if there is no Professor in the Faculty, the office of Dean shall be held by Readers, and if there are no Readers then by other teachers in that Faculty, by rotation in order of seniority."

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The second proviso to the sub-section 4 of Section 27 very categorically provides that if there is no Professor in the faculty, the office of dean shall be held by readers, and if there are no readers then by other teacher in that faculty by rotation in order of seniority. Therefore, in view of this proviso, which is nonexistent in the ordinance which is applicable in the case at hand and which is referable to sub-section 8 of Section 27 meant for affiliated colleges and not Section 27(4) of the Act, 1973 meant for Universities, the said judgment does not apply in this case, because the proviso contained therein was different from the one applicable herein. Relevant extract of Section 16-D of the ordinance which is applicable in this case reads as under:-

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" 16 (D) CONSTITUTION OF BOARD OF STUDIES:

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(As per provision of 27 (8) of Act - 1973)

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1. The constitution of the Boards of Studies in the various departments of the different faculties shall be regulated by these ordinances.

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2. In each department recognised under the Statutes, there shall be a Board of Studies.

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3. In the Faculties of Arts, Science, Commerce, Law and Education each Board of Studies shall consist of the following:

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(i) The University Head of the Department concerned who shall be its Chairman and convener.

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(ii) All Professors in the Department.

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(ⅲ) One Reader in the department concerned by rotation in order of seniority for a period of one year.

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(iv) One Lecturer from the University Teaching Department concerned by rotation in order of seniority for a period of one year.

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Provided that in case a subject is being taught in colleges affiliated to this University without there being a department of the subject concerned in the residential wing of the university, two teachers of Reader rank from colleges (only one Reader from a college) in place of

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the persons who would have been on the Board under the above subclauses (i) to (iv). In such case Chairman/convener shall be by rotation in order of seniority of Concern subject teachers of University/colleges.

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(v) Three Teachers from amongst the teachers teaching the subject in the degree/P.G. colleges (only one from a college) affiliated to this University by rotation in order of seniority for a period of one year.

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Provided that in the case of Post Graduate Board of Studies, two teachers shall be taken only from such colleges as have Postgraduate department in the subject concerned.

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(vi) Three such persons not in the service of the University or the affiliated colleges as may be nominated by the Vice-Chancellor in Consultation with the Head/convernor of Board of Studies, having expert knowledge of the subject for a period of three years.

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The post of Reader is now designated as Associate Professor.

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Ordinarily we do not interfere in the exercise of discretion by writ Court where statutory remedy is available, however, in a case such as the present one where, prima-facie exercise of such discretion does not further the cause of substantial justice rather it defeats it, we have to step in.

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Prima facie, there is an apparent error, both on facts and in law of such nature that this was not a fit case where the appellants should have been relegated to the remedy under Section 68 of the Act, 1973 as respondent no.5 herein was not Associate Professor but was a Professor on 10.10.2023, therefore, he could not have been appointed as Convener of Board of Studies, as the subject of law is not taught in the residential wing of the University. The proviso to ordinance of 16-D (3) of the University was applicable and respondent no.5 was out of the zone of consideration, yet he has been appointed. The error is so apparent that we have no hesitation in staying the order which was impugned before the writ court as also the order of the writ court.

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13. Ordered accordingly.

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14 In view of the above, it is open for the Vice Chancellor of the University to appoint a Convener of the Board of Studies strictly in accordance with what has been stated here-in-above, keeping in mind the proviso to ordinance 16-D (3) within a period of one week.

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Issue notice to respondent no.5.

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Pleadings be exchanged within eight weeks.

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List thereafter.

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All pleas are open for consideration on the next date.

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[Om Prakash Shukla,J.] [Rajan Roy,J.]

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Order Date :- 15.5.2024 Vipul

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Digitally signed by :- VIPUL PRATAP GOGAL High Court of Judicature at Allahabad, Lucknow Bench

Ajay Kumar Singh v. State of U.P. Thru. Prin. Secy. Higher Education U.P. Civil Secrt. Lko. and Others

Case brief

What is this about?

What did the court decide?

Ajay Kumar Singh v. State of U.P. Thru. Prin. Secy. Higher Education U.P. Civil Secrt. Lko. and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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