PROFESSOR SUSHIL J. LALWANI VS. JAI NARAIN VYAS UNIVERSITY,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1144/08) 1 PROFESSOR SUSHIL J. LALWANI VS. JAI NARAIN VYAS UNIVERSITY,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1144/08) JUDGMENT Dated:- 6, April, 2009. HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Mr. Sushil J.Lalwani, appellant present in person. Miss Kusum Rao, for the respondents no. 1 and 2. Mr.J.P.Joshi, for the respondent no. 3. BY THE COURT:(PER HON'BLE MR.SANGEET LODHA,J.) REPORTABLE 1. This special appeal is directed against an order dated 23.4.08 passed by the learned Single Judge of this court, whereby the writ petition preferred by the appellant assailing the validity of order dated 10.6.06 passed by the respondent- University appointing respondent no. 3 as Head , Department of Business Finance & Economics stands disposed of in light of a Bench decision of this court dated 27.4.06 rendered in D.B.Special Appeal(W) No. 118/06 “J.N.V.University, Jodhpur & Anr. vs. Dr.Kamlesh Purohit”. 2. Though, the matter comes up for admission, however, it is submitted by the appellant that he is bound to retire in the month of April,09 and if the matter is not heard and decided at PROFESSOR SUSHIL J. LALWANI VS. JAI NARAIN VYAS UNIVERSITY,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1144/08) 2 this stage on an early date, it will render infructuous. In this view of the matter, with the consent of the learned counsel appearing for the parties, the special appeal was finally heard at the motion stage and the same is being decided by this order. 3. In nutshell, the relevant facts are that the appellant was initially appointed as Lecturer in Faculty of Commerce of the respondent-University on 6.7.1970 and thereafter as Associate Professor in the year 1984 by way of direct recruitment. After bifurcation of the Faculty of Commerce into four departments, being senior most Associate Professor, the appellant was appointed as Head of the Department of Business Finance & Economics w.e.f. 1.3.90. The appellant was appointed as Professor in the Commerce Faculty of the respondent-University through open selection on 30.12.91 pursuant to his regular selection by the Selection Committee. The appellant was continued as Head of the Department in terms of Statute 8(1)(c) of the Statutes of the University till 1.2.05 and thereafter, he was again appointed as Head of the Department w.e.f. 2.2.05 for a period of three years vide order dated 6.4.05 issued by the Registrar of the respondent-University. However, all of a sudden, the respondent-University vide order dated 10.6.06 appointed the respondent no. 3 Shri Roor Mal Sharma, an Associate Professor as Head, Department of Business Finance & Economics PROFESSOR SUSHIL J. LALWANI VS. JAI NARAIN VYAS UNIVERSITY,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1144/08) 3 with immediate effect for a period of three years. The appellant handed over the charge of the office of the Head of the Department to the respondent no. 3 on 14.6.06. 4. The appellant made representation to the respondent- university in contemplation of the appointment of the respondent no. 3 as aforesaid and even thereafter vide representations dated 14.6.06 and 7.9.06 for restoration of his position as Head of the Department. The representations made were not responded by the respondent-University, in these circumstances, the appellant assailed the validity of his removal as Head of the Department of Business Finance & Economics and appointment of the respondent no. 3 as Head of the Department by way of writ petition before this court. 5. The case of the appellant as set out in the writ petition was that in terms of the provisions of Statute 8 in presence of a Professor under no circumstances an Associate Professor can be appointed as Head of the Department and consequently, the appointment of the respondent no. 3 as Head of the Department is ex facie illegal. It was submitted that under the provision as contained in Statute 8(1)(c )(1) (i) to (iii) , the appointment as Head of the Department by rotation according to the seniority has to be made from amongst the persons of the same cadre i.e. amongst the Professors or Associate Professors/Readers or PROFESSOR SUSHIL J. LALWANI VS. JAI NARAIN VYAS UNIVERSITY,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1144/08) 4 Lecturers , as the case may be and not by rotation amongst Professor, Associate Professor/Reader and Lecturer. It was submitted that where there is only one Professor/one Associate Professor/Reader or one Lecturer in the Department, the said person would have to be continued as Head of the Department irrespective of the fact that his tenure of three years in terms of Statute 8(2) has come to an end. It was submitted that entire exercise on the part of the respondents in removing the appellant and appointing the respondent no. 3 as Head of the Department is illegal, mala fide and against the plain language of the Statute 8. 6. The writ petition preferred by the appellant has been disposed of by the learned Single Judge by the order impugned in this special appeal holding that the controversy involved in the writ petition is squarely covered by a Bench decision of this court dated 27.4.06 in Kamlesh Purohit's case (supra). 7. It is submitted by the appellant before this court that the learned Single Judge has erred in holding that the controversy involved in the writ petition is squarely covered by a Bench decision of this court in Kamlesh Purohit's case. It is submitted by the appellant that the controversy involved in Kamlesh Purohit's case and other connected matters decided by a Bench of this court vide order dated 27.4.06 was with regard to the PROFESSOR SUSHIL J. LALWANI VS. JAI NARAIN VYAS UNIVERSITY,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1144/08) 5 appointment of the Professors and Associate Professors/Readers as Head of the Department from amongst those who were promoted under Career Advancement or Personal Promotion Schemes vis-a-vis the persons appointed as Professors and Associate Professors/Readers by regular selection/direct recruitment. It is submitted that the question with regard to the appointment as Head of the Department from amongst the Professors, Associate Professors and Lecturers by rotation was never cropped up for consideration of this court in the said matter. It is submitted by the appellant that even in the said judgment it has been categorically observed by the Bench of this court that the Associate Professors/Readers can be considered for appointment as Head of the Department going by the rule of seniority by rotation for a period of three years in case of non availability of the Professor. Accordingly, it is submitted that even in terms of the said judgment, the writ petition preferred by the appellant should have been allowed. Reiterating the stand taken in the writ petition, it is submitted by the appellant that the provisions of rotation by seniority is amongst the persons of the same cadre i.e. amongst the Professors or Associate Professors/Readers or Lecturers , as the case may be and not by rotation amongst Professors, Associate Professors/Readers and Lecturers. It is further submitted by the appellant that the PROFESSOR SUSHIL J. LALWANI VS. JAI NARAIN VYAS UNIVERSITY,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1144/08) 6 Statute 8(2) which prescribes the tenure for appointment as three years cannot make applicable in case where there is only one Professor/ one Associate Professor or one Lecturer, as the case may be in the Department and only Professor, Associate Professor or Lecturer, as the case may be, has to be continued as Head of the Department irrespective of the fact that his tenure of three years has come to an end. 8. Per contra, it is submitted by Mr.J.P.Joshi, learned counsel appearing on behalf of the respondent no. 3 that the controversy involved in the writ petition was squarely covered by a Bench decision of this court in Kamlesh Purohit's case (supra) and the learned Single Judge has committed no error in disposing of the matter in terms of the said judgment. The learned counsel submitted that in view of the provisions contained in Statute 8 (2), no person can be continued as Head of the Department beyond the period of three years and exactly, this is the law laid down by a Bench of this court in Kamlesh Purohit's case (supra) therefore, the appellant who has continued as Head of the Department for all these years cannot claim his reappointment as Head of the Department in violation of the provisions of Statute 8(2). It is submitted by the learned counsel that in the matter of appointment of the Head of the Department in terms of Statute 8, the question of a person holding the higher or lower PROFESSOR SUSHIL J. LALWANI VS. JAI NARAIN VYAS UNIVERSITY,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1144/08) 7 post , junior or senior is not relevant and since the respondent no. 3 is also entitled to be appointed in terms of Statute 8(1)(c) (ii) read with Statute 8(2) therefore, no exception can be taken to his appointment. Precisely, it is contended by the learned counsel that the tenure of the appointment in terms of Statute 8 (2) puts a complete embargo and no person can be continued as Head of the Department beyond the period of three years. It is submitted by the learned counsel that the Bench decision of this court in Kamlesh Purohit's case (supra) has been further followed by a learned Single Judge of this court in the case of the appellant himself reported in 2008(2) CDR, 1048(Raj.). 9. Miss Kusum Rao, the learned counsel appearing for the respondent nos. 1 and 2 while adopting the arguments advanced by Mr. J.P.Joshi, learned counsel appearing on behalf of the respondent no. 3 reiterated that the controversy involved is no more res integra and it stands concluded by the Bench decision of this Court in Kamlesh Purohit's case (supra). It is submitted by the learned counsel that in view of Statute 8(2) , a person who has worked for more than three years cannot be continued as Head of the Department and a Professor appointed as Head of the Department has to give way to the next senior in the cadre and in case of non availability of the person in the same cadre to the person in the next lower cadre i.e. Associate PROFESSOR SUSHIL J. LALWANI VS. JAI NARAIN VYAS UNIVERSITY,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1144/08) 8 Professor/Reader or Lecturer, as the case may be. It is submitted by the learned counsel that the Statute 8(2) providing the tenure for the appointment of Head of the Department cannot be deviated from in any circumstances. 10. We have considered the rival submission, perused the judgments relied upon by the parties and the relevant provisions of the Statute of the University. 11. The first question which falls for consideration of this court is as to whether the controversy raised in the writ petition and this special appeal regarding the entitlement of Associate Professor/Reader or Lecturer for appointment as Head of the Department in presence of Professor, under Statute 8(1)(c) by rotation by seniority stands concluded by the Bench decision of this court in Kamlesh Purohit's case (supra). 12. In Kamlesh Purohit's case (supra), the controversy involved was as to whether in case of non availability of regularly selected/directly recruited Professors and Readers, in terms of Statute 8, the University is empowered to appoint the persons holding the ex cadre post of Professors and Readers i.e. promoted as Professor/Reader under the Career Advancement Scheme or Personal Promotion Scheme as Head of the Department. The controversy as aforesaid had arisen before the Bench of this court on account of interim orders passed by the PROFESSOR SUSHIL J. LALWANI VS. JAI NARAIN VYAS UNIVERSITY,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1144/08) 9 learned Single Judge in various writ petitions staying such appointments. After due consideration, a Bench of this court while deciding the controversy raised in Kamlesh Purohit's case (supra) and other cognate matters, held that : “ A combined reading of statute 8(1)(c)(1)(i) and statute 8(2)(i) makes it evident that appointment of Head of Department is to be made by rotation on the basis of seniority. We have indicated above the availability position of regularly selected/directly recruited Professors and Readers in the University. We are of the view that in view of non availability of regularly selected/direct recruited Professors and Readers, the University has no option but to appoint Head of the Department from amongst those who have been promoted under the Career Advancement or Personal Promotion Schemes, as the case may be, and a regularly selected/directly recruited Professor or Reader cannot continue as Head of the Department merely because another regularly selected Professor/Reader is not available.”(emphasis added). 13. While dealing with the question of tenure of such appointment , the Bench observed:- “A dispute arose as to what would be tenure of such appointment. We have no doubt in our mind, having regard to the mandate of statute 8(2)(i) read with 8(1) (c)(1)(i) that the tenure cannot be more than three years. Statute 8(1)(c)(1)(i) lays down in no uncertain terms that the appointment shall be made by rotation by seniority and statute 8(2)(i) fixes the tenure as three years. The University has no option but to appoint the Professor ( or in case of non availability of Professor, an Associate Professor/Reader) going by the rule of seniority by rotation for a period of three years.”(emphasis added) 14. Thus, the ratio of said decision is that on non availability of PROFESSOR SUSHIL J. LALWANI VS. JAI NARAIN VYAS UNIVERSITY,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1144/08) 10 regularly selected/directly recruited Professors/Associate Professors or Lecturers, as the case may be, the University is empowered to appoint Head of the Department from amongst the persons who have been promoted under the Career Advancement Scheme and the regularly appointed Professors, Associate Professors or Lecturers , as the case may be cannot be continued as Head of the Department on account of non availability of regularly selected Professors/Associate Professors or Readers. The controversy with regard to operation of the Statute 8(1)(c)(ii) and 8(1)(c)(iii) dealing with the eligibility of the Associate Professors or Lecturers for appointment as Head of the Department notwithstanding the availability of the Professors never came for consideration of the Bench of this court in Kamlesh Purohit's case (supra). From the said decision, in no manner, it can be inferred that since the tenure of the post under the Statute 8(2) has been fixed as three years , therefore, in case of non availability of any other Professor, the appointment as Head of the Department has to be made from amongst the next lower cadre i.e. the Associate Professors or Lecturers. To the contrary, as noticed above, in the said decision, while arriving at the finding as aforesaid after due consideration of the provisions of Statute 8(1)(c) (1)(i) and Statute 8(2)(1), the Bench has observed that the University has PROFESSOR SUSHIL J. LALWANI VS. JAI NARAIN VYAS UNIVERSITY,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1144/08) 11 no option but to appoint the Professor (or in case of non availability of Professor/Associate Professor or Reader) going by rule of seniority by rotation for a period of three years. 15. That apart, it is settled law that a decision is an authority for the question of law determined having regard to fact situation obtaining therein. It cannot be said to be a precedent for a point which was never canvassed and considered therein. Any observation made by the court on the point which was never raised before the court or perceived and determined by the court consciously cannot form part of ratio decidendi of the case and precedent sub silentio cannot be termed as binding precedent. The point in issue in the instant case has not even been referred much less considered by this court in the earlier decision in Kamlesh Purohit's case(supra), therefore, it cannot be said that the controversy involved is no more res integra and stands concluded by the said decision. 16. Thus viewed from any angle, with utmost respect, in our considered opinion, the learned Single Judge has erred in disposing of the writ petition preferred by the appellant holding that the controversy involved therein is squarely covered by the aforesaid earlier Bench decision of this court. 17. This takes us to consideration of the core question involved in the matter as to whether in case where Professor is available , PROFESSOR SUSHIL J. LALWANI VS. JAI NARAIN VYAS UNIVERSITY,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1144/08) 12 the provisions contained in Statute 8(1)(c)(ii) and (iii) dealing with appointment of Associate Professors/Readers or Lecturers can at all be resorted to by the respondent University on the ground that the tenure of appointment in terms of the Statute 8 (2) puts a complete embargo and no person can be continued as Head of the Department beyond the period of three years. 18. Since the controversy involved in the appeal revolves around Statute 8 of the Statutes of the University therefore, it will be beneficial to reproduce Statute 8 to the extent it is germane to the controversy involved, which reads as under:- 8 (1) (a) .............xxxxx...........................xxx (b) ..............xxxxxx........................xxxx (c ) Each Department shall have a Head who shall be appointed in the following order of preference: (1)(i) Professor in the subject by rotation by seniority. If a Professor who is Head of the Department under clause (1)(i) above goes on leave without pay/EOL, deputation or he goes on any type of leave for a period of not less than 1 month, the next senior most Professor, shall be appointed Head of the Department for such period as the person appointed under clause 1(i) is on leave. This period shall not count towards the term. (ii) In case there is no Professor or all Professors are on leave, Readers by rotation by seniority. If a Reader who is Head of Department under clause 1(ii) above goes on leave without pay/EOL, deputation or he goes on any type of leave for a period of not less than 1 month, the next senior most Reader shall be appointed PROFESSOR SUSHIL J. LALWANI VS. JAI NARAIN VYAS UNIVERSITY,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1144/08) 13 Head of the Department for such period as the person appointed under clause 1(ii) is on leave. This period shall not count towards the term. (iii) In case there is no Professor or Reader or all Professors and Readers are on leave, Lecturers by rotation by seniority. If a Lecturer who is Head of the Department under clause 1(iii) above goes on leave without pay/EOL, deputation or he goes on any type of leave for a period of not less than 1 month, the next senior most Lecturer shall be appointed Head of the Department for such period as the persons appointed under clause 1(iii) is on leave. This period shall not count towards the term. 2(i) ..... xxxx .........xxxxxx (ii) .....xxxxx ........xxxxxx (3) In case the Vice-Chancellor is of the opinion that the work of the Head of the Department is not in the interest of the Department, he shall present to the Syndicate an account of the same and it shall be open to the Syndicate to remove the Head of the Department and appoint the next seniormost man in the order of preference indicated above as Head of the Department. Provided that before taking such an action the Syndicate shall consider the explanation, if any, submitted by the Head of the Department and that no such action shall be taken without the concurrence of 2/3rd of the members of the Syndicate present in the meeting of the Syndicate.” 19. A bare perusal of the above provision reveals that it provides for appointment as Head in each department in order of preference set out in clause 8(1)(c) (i) to (iii) from amongst the Professor in the subject by rotation by seniority, in case there is no Professor or all Professors are on leave, Readers by rotation PROFESSOR SUSHIL J. LALWANI VS. JAI NARAIN VYAS UNIVERSITY,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1144/08) 14 by seniority and in case there is no Professor or Reader or all Professors and Readers are on leave , Lecturers by rotation by seniority. Obviously, the “preference” in terms of Statute 8(1) shall operate amongst the Professors , Associate Professors and Lecturers, as the case may be and in no manner , it can be inferred from the said provision that the order of preference by rotation by seniority shall be applied amongst the Professors , Readers and Lecturers inter se. To be specific, Statute 8(1)(c) (1)(ii) can be invoked only when no Professor is available in the Department concerned. Likewise, Statute 8(1)(c)(iii) dealing with appointment of the Lecturer as Head of the Department shall operate only when neither Professors nor Associate Professors/Readers are available for appointment as Head of the Department. In other words, the rule of rotation by seniority shall be applied amongst the persons belonging to the same cadre i.e. amongst the Professors or Associate Professors/Readers or Lecturers and not amongst the persons belonging to the different cadres i.e. Professors, Associate Professors/Readers and Lecturers. Suffice it to say that if there is only one Professor in the Department then, the question of rotation by seniority in terms of Statute 8(1)(c)(1) (i) shall not arise and Statute 8(1)(c)(1)(ii) & (iii) shall not operate. 20. Undoubtedly, Statute 8(2) provides that the term of the PROFESSOR SUSHIL J. LALWANI VS. JAI NARAIN VYAS UNIVERSITY,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1144/08) 15 appointment shall be three years. But then, the aforesaid provision providing the term of appointment cannot be read in isolation ignoring the main provision as contained in Statute 8(1) (c) which determines the entitlement of the Professors or Associate Professors or Lecturers for appointment as Head of the Department in order of preference by rotation and by seniority. A conjoint reading of Statute 8(1)(c) and Statute 8(2) makes it abundantly clear that if more than one person are available in any of the three categories of the posts i.e. Professor, Associate Professor or Lecturer then, a person holding the same category of the post cannot be continued as Head of the Department beyond a period of three years and he has to give way to the other person available holding the same category of post. But, if no other person is available in the same category of post to be given preference by seniority and by rotation in the matter of the appointment as Head of the Department then, the term of the appointment prescribed under the Statute 8(2) shall not come in the way of such person for his reappointment as Head of the Department in terms of Statute 8(1)(c)(i) to (iii) , as the case may be. In our considered opinion, the Statute 8 as framed does not contemplate a situation wherein a Professor can be compelled to work under an Associate Professor/Reader or Lecturer, except in the situation where only Professor in the PROFESSOR SUSHIL J. LALWANI VS. JAI NARAIN VYAS UNIVERSITY,JODHPUR & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.1144/08) 16 Department appointed as Head of the Department is removed from the office in terms of Statute 8(3) by the Syndicate on arriving at the conclusion that his work is not in the interest of the Department concerned. In that situation obviously, it will be a case of non availability of the Professors and the next senior most person from amongst the Associate Professors or Lecturers, as the case may be, in order of preference by seniority and by rotation has to be appointed as Head of the Department. We are of the considered opinion that any other interpretation of the Statute 8 (1)(c) read with 8(2) will be against the spirit of the provisions incorporated and will amount to cutting at the very root of the established and accepted principles and norms governing the administrative discipline in a public institution. Thus, the interpretation sought to be adopted by the respondent University treating the provisions contained in Statute 8(2)