1 S.B. CIVIL WRIT PETITION NO.1434/2005 (Prof. Sushil J. Lalwani Vs. Jai Narain Vyas University & ors.) Date of Order :: 7th March 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Prof. Sushil J. Lalwani petitioner-in-person Mr.J.P.Joshi with ) Mr.R.S. Bhati ) Mr.P.P.Choudhary with ) for the respondents Mr.Amit Dave ) .. By way of this writ petition, filed on 14.03.2005, the petitioner Professor Sushil J. Lalwani, holding the post of Professor in the Department of Business Finance and Economics in the respondent Jai Narayan Vyas University, has questioned the appointment of the respondent No. 4 Smt. Kalpana Mathur as Dean of the Faculty of Commerce and Management Studies by the order issued on 11.03.2005 (Annex.1); and by way of amendment made in the petition that was allowed on 09.10.2007, the petitioner has also given challenge to the resolution No.14 (Annex.8) adopted in the meeting of the Syndicate dated 27.12.2005. Put in a nut-shell, the contention of the petitioner is that he is the only selected Professor in relation to the Faculty concerned and thereby he alone is entitled to appointed as its Dean; and the respondent No. 4 who has been promoted as Professor in the Department of Management Studies under the 2 Career Advancement Scheme (CAS for short) is not holding cadre post of Professor and is, thus, not eligible to be appointed as Dean under Statute 14 of the Statutes of the University concerned. Briefly put, the averments of the petitioner are that he was appointed as Lecturer on 06.07.1970; then he was appointed as Associate Professor in the year 1984; and then, on 31.12.1991 he was appointed as Professor in the Department of Business Finance and Economics in the Faculty of Commerce and Management Studies pursuant to regular selection through direct recruitment. The petitioner maintains that he has for most of the time remained the only selected Professor in the Faculty in the past and continues to be so even now; that he remained Dean of the Faculty concerned from 01.01.1992 to 31.12.1997 and then from 12.03.1999 to 11.03.2005 (four terms); and that he is the only eligible person to be continued and re-appointed as Dean. The petitioner has pointed out that in the past also when his appointment as Dean of the Faculty concerned was not continued and a Reader Dr.J.C.Gandhi was sought to be appointed as Dean, the action of the University was challenged in S.B. Civil Writ petition No.28/1998 that was allowed by this Court on 25.02.1999 and thereafter, the petitioner was again appointed as Dean by the order dated 12.03.1999 for a period of three years and then again for another period of three years from 12.03.2002 to 11.03.2005. In relation to the respondent No.4, the petitioner maintains that 3 she holds the cadre post of Lecturer; that she was promoted as Reader under Ex-cadre Promotion Scheme in year 1993 and then was illegally promoted as Professor under Career Advancement Scheme on 16.07.2002. The petitioner emphasizes that the respondent No.4 is not holding cadre post of Professor and is, therefore, not entitled to be appointed as Dean. The petitioner has referred to the provisions as contained in Statute 14 of the University that provides for appointment of Dean in each Faculty and is framed under Section 22 read with Section 21 of the Jai Narain Vyas University Act, 1962 (‘the Act of 1962’) and has contended that in case of professional Faculties having only one Professor, the said Professor alone, like himself, is entitled to be appointed and re-appointed as Dean. The petitioner has also referred to the provisions of the Rajasthan Universities’ Teachers and Officers (Selection for Appointment) Act, 1974 (‘the Act of 1974’) as they stood before the amendment made to the said Act by the Amending Act No.3 of 1998 particularly as contained in Section 2(1)(i), Section 2(1)(ii), Section 11, and Section 12; and so also the provisions as contained in the said Act of 1974 after its amendment; and has contended that the Act of 1974 does not envisage or contain any provision for promotion; and there is only one source of recruitment of the university teachers and that is by way of direct recruitment. Thus, according to the petitioner, in the absence of any statutory sanction, 4 any promotion accorded under any scheme would obviously be ex- cadre promotion and such promoted Reader and/or Professor would stand outside the cadre. The petitioner has pointed out that the Division Bench of this Court in the case of Dr.U.R.Nahar Vs. J.N.V. University: 1996 (1) RLR 606, after considering the provisions of the Act of 1974 has specifically held that while considering the appointment of Head of Department, only the Associate Professor and the Professor holding cadre post would be eligible for consideration and not the persons holding ex-cadre post by virtue of personal promotion; and the Division Bench further held that a combined seniority list of teachers holding cadre post and the teachers having ex-cadre post cannot be prepared and declared ultra vires the then existing Section 11 (12) of the Act of 1974 relating to inter-se seniority between direct recruits and personal promotees. The petitioner has pointed out that the aforesaid Division Bench decision of this Court has been approved by the Hon’ble Supreme Court in its judgment dated 17.10.2001 in Civil Appeal No.5987/1997:Jai Narain Vyas University Vs. Dr.U.R.Nahar [reported in (2002) 10 SCC 514]. The petitioner has averred that the University Grants Commission (UGC) has purportedly framed Regulations 2000 in exercise of powers under Section 26 (e) and 26(g) of the University Grants Commission Act, 1956 providing qualification for direct appointment as well as for purported promotion under the alleged 5 Career Advancement Scheme. It is, however, maintained that no such power vests in UGC as to provide for any channel of promotion or to create any cadre in the University. The petitioner has further pointed out that the respondent University in purported exercise of powers under Section 2(1) of the Act of 1962 has proceeded to amend its Ordinance 317 as per the advice of UGC but the provisions therein providing promotions from the post of Reader to the post of Professor remains beyond the Act of 1974 particularly when the Act of 1974 nowhere envisages promotion channel. The petitioner has put forward the contention that granting promotion under the purported CAS in the garb of prescribed qualification in Ordinance317 cannot by itself create a new source of recruitment, and according to the petitioner, if Ordinance 317 contemplates to do so, then it would be ultra vires. The petitioner would submit that any so-called promotion under CAS, if at all, be ex-cadre promotion and that is outside the regular cadre and such promotee, whether under the erstwhile ex-cadre promotion scheme or under the purported CAS, cannot be considered for the post of Dean/Head as he cannot claim any parity with the direct recruit who alone holds the cadre post. Mainstay of the petitioner is that respondent No.4 being an ex- cadre promotee was not eligible for appointment as Dean in terms of the Statute; and could not have even been considered much less appointed as Dean. Thus, according to the petitioner, the respondent 6 No. 4 is usurper of the office of Dean. According to the petitioner, himself being the only selected Professor and alone being entitled to be appointed/re-appointed/and continued as Dean, immediately on coming to know of the attempted appointment of the respondent No.4 as Dean, faxed a representation to the Vice-Chancellor on 12.03.2005 (Annex.4) but did not receive response; and hence has preferred this writ petition. The petitioner has also suggested in the writ petition that the respondent No.4 could not have been appointed as Professor at all and her appointment as Professor by the order dated 16.07.2002 remains illegal for there were only two posts available in CAS and two persons Dr.Naveen C.Mathur and Dr.H.K.Bedi were promoted to such posts; and that the respondent No.4 had already availed one promotion when she was promoted as Reader under ex-cadre scheme and could not have been promoted as Professor under the CAS. The petitioner has also pointed out that the respondent No. 4, has in fact applied for direct recruitment when the posts were advertised in the month of January 2005 and has averred that such CAS promotees are aware of the position that CAS promotion is distinct than cadre of teachers appointed on open selection. The petitioner has also stated various instances where the promotee Professor or Reader has not been appointed as Head of Department or Dean of Faculty and instead, the direct recruit one has been so appointed; and such, according to the petitioner, has 7 been the correct operation of the statutory provisions by the respondent University. The respondents appeared in this matter in caveat and filed their respective replies. After hearing the parties, the petition was admitted on 18.05.2005. While the petition remained pending for consideration, the petitioner moved an application on 06.04.2007 seeking to question the resolution of the Syndicate of the University as adopted on 27.12.2005. Application for amendment was allowed on 09.10.2007 and by filing amended writ petition, the petitioner has given a challenge to the said resolution dated 27.12.2005 wherein the Syndicate resolved, inter alia, that with regard to the appointment of Heads of Department/Dean of Faculties, the newly prepared seniority lists of Professors, Associate Professors and Assistant Professors would form the basis. The petitioner alleges that such resolution had only been to circumvent the settled position of law, was not duly adopted for want of proper quorum, and was passed without approval of the Academic Council. The respondents have filed separate detailed replies in opposition to the contentions as put forward by the petitioner. Though the University in its reply has largely proceeded to justify issuance of Ordinance 317 and has emphasized that the same has rightly been made providing for other sources of recruitment as contemplated by the UGC Regulations, however, instead of lengthening the present order with all the reply submissions, it 8 appears appropriate to refer to substance of the averments as taken in the reply filed by the respondent No.4. The respondent No.4 has taken objections that the petitioner was not justified in making misleading reference to the unamended provisions of the Act of 1974; that challenge to the appointment of answering respondent on the post of Professor, Department of Management Studies was grossly belated and her promotion made by the order dated 16.07.2002 could not be put to challenge after more than two and half years. The answering respondent has averred that the petitioner has collaterally challenged the promotion order dated 16.07.2002 but then, he comes from a different discipline being a Professor in the Department of Business, Finance and Economics whereas she is the Professor in the Department of Management Studies. It has also been alleged that the petitioner has concealed the fact that he was a member of the Selection Committee that selected her for promotion to the post of Professor. The respondent has further pointed out that after her promotion as Professor, she was nominated as Member of Syndicate by the Vice-Chancellor in exercise of the powers conferred by Section 16(iii) of the Act of 1962 being entitled for such nomination for holding the post of Professor; and submits that the petitioner who was a Member of Syndicate never raised any objection to such nomination of the answering respondent as a Member of Syndicate. The answering respondent says that when she could be nominated 9 as the Member of Syndicate by virtue of her holding the post of Professor, the provisions of Statute 14(1) could not be interpreted differently. With reference to the provisions contained in Statute 14(1), the answering respondent submits that the eligibility for appointment as Dean is not confined to the Professor selected by direct recruitment only; and under the present scheme of appointments, there are two sources of recruitment, one being the direct recruitment and another by way of promotion. Relying on the scheme for appointment to the post of Professor per the force of the UGC Regulations of 2000, the answering respondent maintains that the University remains under the obligation to comply with such Regulations and submits that the respondent University has amended the Ordinance 317(4) in conformity with the UGC Regulations of 2000 and she has rightly been promoted as Professor essentially under the scheme promulgated by the UGC. With reference to the notification dated 31.07.2001 the answering respondent has pointed out that per paragraph 2.5.0, the Professors are envisaged to be appointed by way of promotion in addition to the sanctioned posts of Professors. The answering respondent maintains that the contention of the petitioner of her holding ex-cadre post is not correct; and then submits that in any case, Statute 14(1) confers eligibility on a Professor to be appointed as Dean and the source of recruitment as Professor is not at all relevant thereto. 10 In relation to the decision in CWP No. 28/1998 as referred to and relied upon by the petitioner, the respondent No. 4 submits that in the said writ petition, the petitioner had challenged appointment of a Reader to the post of Dean and the position in the present case remains different inasmuch as the answering respondent is holding the post of Professor. Further, while distinguishing the decision in U.R.Nahar’s case (supra), the answering respondent submits that therein the then existing provisions of the Act of 1974 were considered and then the basic question involved in that case was about inter-se seniority of the Associate Professors coming by way of direct recruitment and under the personal promotion scheme and the said decision has no application to the facts of the present case. While refuting the submissions of the petitioner suggestive of her promotion being on ‘ex-cadre post’, the answering respondent has referred to the substantial changes brought about in the Act of 1974 by the Amendment Act of 1998 and has referred to the Statements of Objects and Reasons for the Amendment Act of 1998 to submit that the scheme of ex-cadre post has now been given up and all promotions are being made on substantive basis. The respondents have also pointed out that the petitioner has not challenged the validity of Ordinance 317 and UGC Regulations 2000; and submit that in absence of such challenge, the petitioner is not entitled to challenge the appointment of respondent No.4 to the post of Professor. It has also been pointed out that a Division Bench 11 of this Court has stayed operation of the judgment of this Court wherein Ordinance 317 was declared ultra vires. The suggestions about non-existence of post under CAS have also been refuted with reference to the sanction available with the University concerned. In sum and substance, the respondent No. 4 maintains that she has rightly been promoted as Professor by virtue of the amended Ordinance 317 based on UGC Regulations, 2000; the petitioner is not entitled to question her promotion; that the contention of the petitioner that her promotion was ex-cadre was not correct; and in any case, Statute 14(1) provides eligibility with a Professor to be appointed as Dean and she has, thus, rightly been appointed as Dean after the end of tenure of the petitioner on 11.03.2005. The petitioner has also filed a rejoinder essentially reiterating the stand as taken in the writ petition and it does not appear necessary to detail out all other aspects in the pleadings for the limited question being addressed to in this order. Prof. Sushil J. Lalwani, learned petitioner appearing in person, learned counsel Mr. J.P.Joshi appearing for the respondent No.4, and learned counsel Mr. P.P.Choudhary appearing for the respondent-University have made submissions in conformity with the stand as taken in respective pleadings. The petitioner has precisely relied on the decision in U.R.Nahar's case (supra) and the decision in Dr. Rashmi Srivastava Vs. Vikram University and Ors.: 1995(3) SCC 653, and submitted that UGC Regulation, 2000 cannot be and 12 is not providing any source of recruitment; that there is no other cadre of Professor in the University concerned except as provided by the Act of 1974; that he alone is the person who has been recruited as Professor and holds the cadre post and thus is entitled to be continued as Dean as had been continued before the questioned appointment of respondent No.4. The petitioner has referred to the provisions of the Act of 1974 and submitted that any cadre appointment could be brought about only under the said Act of 1974 and the Career Advancement Scheme, even if implemented, cannot create any cadre post. The petitioner also urged that the ratio of U.R.Nahar's case only would prevail and any person standing outside the cadre cannot be treated as Professor and cannot be appointed as Dean. The petitioner submitted that the promotion of the respondent No.4 in the name of CAS would nevertheless remain a personal promotion and not an appointment into the cadre. The petitioner further submitted that UGC itself has treated these kind of appointments under CAS to be ex-cadre promotions. The petitioner further contended that the Syndicate Resolution remains fundamentally unauthorised and in any case, while issuing the order in favour of the respondent No.4 on 11.03.2005, there was no such resolution and, therefore, the impugned order cannot be sustained. Learned counsel for the respondents have maintained that the Amendment Act of 1998 deleted the provisions of Section 2 (1) (i), 2 (1)(ii) and Section 11 of the Act of 1974 as earlier existing; and the 13 entire operation of statute having fundamentally been altered, the ratio from U.R.Nahar and Dr. Rashmi Shrivastava are not applicable in the changed circumstances. Learned counsel submitted that the Act of 1974 deals with direct recruitment but under the Act of 1962 when the service conditions could be provided by framing relevant Ordinance, the University has rightly provided so by bringing about specific amendment in Ordinance 317 particularly in view of UGC Regulations, 2000; and the respondent No.4 having been appointed as Professor under the Career Advancement Scheme remains a Professor and has rightly been appointed as Dean. Learned counsel have referred to the decision in Prof. S.A.Siddiqui Vs. Prof. M.Wajid Khan and others: (1999) 2 SCC 1 to submit that the persons appointed under both the modes, i.e., those appointed against open posts (like the petitioner) and those appointed under any Promotion Scheme (like the respondent No. 4 coming under CAS) are treated belonging to the same cadre. Learned counsel have also referred to the order made by the Division Bench of this Court in Dr.S.P.Singh Vs. J.N.V.University, Jodhpur and others: D.B.Civil Special Appeal No.324/2006 and two cognate matters, decided on 27.04.2006. The petitioner has urged that in Prof. S.A.Siddiqui’s case the Hon’ble Apex Court has considered entirely different provisions of Aligarh Muslim University Act, 1920 where the power to make appointment in any form remains available with the University concerned; and so was the case in U.P. State Universities Act, 1973 (as referred in Prof. 14 S.A.Siddiqui in relation to the other cited decisions). According to the petitioner Prof. Lalwani, for the scheme of such enactments, fusion of the persons getting appointed by different modes into one cadre might have been possible but the position in relation to the Act of 1974 remains entirely different. Prof. Lalwani has referred to the overriding provisions contained in the Act of 1974 including those in Section 3 thereof that no teacher and no officer in any University in Rajasthan shall be appointed except on the recommendations of the selection committee constituted under Section 4; and that the expression “appointed” shall mean appointed initially and not appointed by way of promotion. Having given thoughtful consideration to the entire matter, this Court is of opinion that challenge as given in this writ petition to the appointment of respondent No.4 as Dean of the Faculty of Commerce and Management Studies; and the claim as made by the petitioner, of himself being the only person entitled to be appointed and re-appointed as Dean of the said Faculty, cannot succeed. It may be pointed out that though in the writ petition, submissions have been made suggestive of challenge by the petitioner to the very promotion of the respondent No.4 as Professor under CAS but the petitioner has not laid much emphasis on such challenge, and rightly so. The respondent No.4 had been promoted as Professor under CAS way back in the year 2002 and belongs to a different discipline i.e., Management Studies. For the cause and 15 grievance as stated in this writ petition regarding Deanship of the Faculty concerned, even if sought, the petitioner would not have been acceded locus to put a challenge to the very promotion of the respondent No.4 as Professor under CAS, even collaterally. The main plank of the submissions of the petitioner has been that the cadre of Professor is the cadre as envisaged and contemplated by the Act of 1974 and CAS being precisely outside the purview of the Act of 1974, even if any promotion is made thereunder, the promotion would essentially remain personal to the teacher concerned and such promotee being not in the cadre, cannot be treated as Professor for the purpose of appointment as Dean. The submission cannot be accepted in view of the area of operation of Statute 14 and for the view taken by the Division Bench of this Court in S.P. Singh’s case (supra). Statute 14, the subject matter of interpretation in the present case reads thus: ''14(1) There shall be a Dean of each Faculty who shall be appointed by the Vice-Chancellor in the following order of preference, namely: (1) Professor in the subjects assigned to the Faculty in the University by rotation according to their seniority; (2) Reader in the subjects assigned to the Faculty in which there are no Professors. Note: 1. The person to be appointed Dean must profess a subject included in the Faculty concerned. 2. In case, in any Faculty, no person satisfies the above qualifications for being nominated as Dean, the Vice Chancellor shall nominate a Senior Teacher as Dean in the Faculty. (2) The Dean shall hold office for a term of three years and no 16 person shall be eligible for re-appointment as Dean until a period of at least three years has elapsed after the expiry of his last term: Provided that the Vice-Chancellor may waive this condition for those professional Faculties which have only one Professor. (3) The Dean of each Faculty shall be the Chief Academic and Executive Officer of the Faculty and shall preside at its meetings. (4) The Dean shall issue the lecture lists of the University in the Departments comprised in the Faculty, and shall be responsible for the conduct of teaching therein. (5) The Dean shall have the right to be present and to speak at any meeting of any committee of the Faculty but not to vote thereat unless he is a member of the Committee.'' A bare look at the provisions aforesaid makes it clear that the Statute does not make any distinction between a person holding a cadre post and a person holding ex-cadre post. The preference for appointment as Dean goes to the Professor, of course in the order of their seniority. However, it does not make a distinction between a person holding cadre post and a person holding ex-cadre post of Professor. For the purpose of true operation of the provisions contained in Statute 14, the Professor in the University by whatever name or nomenclature his or her appointment is referred, be it direct recruitment, be it personal promotion scheme, or be it Career Advancement Scheme, shall have to be considered as Professor nevertheless. This Court is of opinion that if such open and wide interpretation is not given to the Statute 14, its operation would get unnecessarily restricted without any purpose being achieved; and rather would be in retardation of the schemes including CAS, framed by