LPA No.88 of 2010 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. LPA No.88 of 2010 Date of decision : 12.10.2010 Dr. R.D. Sharma ...Appellant Versus State of Haryana & others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJAN GOGOI HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. D.S. Patwalia, Advocate for the appellant. Ms. Manjari Nehru Kaul, Addl. Advocate General, Punjab. Mr. Balram Gupta, Senior Advocate with Ms. Anamika Negi, Advocate for respondents No.2 & 3. Ranjan Gogoi, J. (oral) This appeal is directed against the order dated 21st October, 2009, passed by a learned Single Judge of this Court in proceedings registered and numbered as CWP No.15991 of 2009. The short question agitated before the learned Single Judge is with regard to applicability of the rules framed by the Maharishi Dayanand University in respect of the terms and conditions of service of its non-teaching employees to the institution, in which the appellant-writ petitioner was working as a Superintendent at the relevant point of time i.e. B.P.S. Mahila Vishwavidalaya, Khanpur Kalan (Sonepat). More specifically, the issue was whether the Rules of the University LPA No.88 of 2010 2 prescribing recruitment to the post of Assistant Registrar, by way of promotion to the extent of 75% and direct recruitment to the extent of 25%, is required to be followed by the B.P.S. Mahila Vishwavidalaya, Khanpur Kalan. On the ground that the said rule has been violated, the appellant-writ petitioner had challenged an advertisement for filling up of one post of Assistant Registrar by way of direct recruitment over and above the two available posts in the cadre which already stood filled up by direct recruitment. The learned Single Judge hearing the writ petition took the view that while the Rules of Maharishi Dayanand University with regard to eligibility, qualifications and such other requirements do apply to the respondent institution, the Rules with regard to filling up the post by way of promotion and direct recruitment in the proportion, noted above, is not mandatory. Accordingly, the writ petition was dismissed. It will be necessary to note, at this stage, that the dismissal of the writ petition was without having the definite stand of the respondent no.3 on the record of the writ petition. The argument and counter argument before us as raised by the learned counsels for the parties would indicate that the Rules of Maharishi Dayanand University would apply to the respondent institution to the extent possible keeping in mind the ground realities. It has been pointed out that the respondent No.3 B.P.S. Vishwavidalaya, Khanpur is only four years old whereas the Maharishi Dayanand University has been in existence for several decades and that in the LPA No.88 of 2010 3 present case due to lack of qualified and eligible persons in the feeder post, promotion to the post of Assistant Registrar cannot be made. It is on account of non-availability of eligible persons that resort to direct recruitment had to be made by way of the advertisement in question. The arguments led before us gives rise to question whether the departure from the Rules of the University in the present case has been occasioned by the needs of situation i.e. lack of eligible and qualified persons for promotion. The issue is disputed and contested. The issue before us has not been decided by the learned Single Judge, perhaps due to absence of the specific stand of the respondent No.3 at the stage when the writ petition came to be disposed of. In an appeal against the order of the learned Single Judge, it may not be appropriate for us to consider issues and question which the learned Single Judge had no occasion to consider. That apart, any decision of ours on the issue have the effect of causing some prejudice to either of the parties one of whom is likely to loose a forum if the appeal is to be heard by us on the question raised. We are, therefore, of the view that in accordance with sound judicial practice and also to avoid any prejudice to either of the parties, the question now raised before us i.e. whether the B.P.S. Mahila Vishwavidalaya, Khanpur was justified in departing from the procedure of recruitment prescribed by the Rules of the Maharishi Dayanand University, should be heard and disposed of by the learned Single Judge. Accordingly, we interfere with the order dated 21st October, LPA No.88 of 2010 4 2009, passed by the learned Single Judge and remand the matter to the Bench which has passed the order dated 21st October, 2009 for a de novo consideration of the question raised. We dispose of the present appeal accordingly. (Ranjan Gogoi) Judge (Rajan Gupta) Judge October 12, 2010 'rajpal'